No. 02-1674 et al.
IN THE
Supreme Court of the United States
SENATOR MITCH MCCONNELL ET AL.,
Appellants/Cross-Appellees,
v.
FEDERAL ELECTION COMMISSION ET AL.,
Appellees/Cross-Appellants.
On Appeal From The United States
District Court For The District of Columbia
BRIEF FOR APPELLANTS/CROSS-APPELLEES
SENATOR MITCH McCONNELL ET AL.
(PAGE-PROOF VERSION)
FLOYD ABRAMS
SUSAN BUCKLEY
BRIAN MARKLEY
CAHILL GORDON &
REINDEL LLP
80 Pine Street
New York, NY 10005
(212) 701-3000
KENNETH W. STARR
Counsel of Record
EDWARD W. WARREN
KANNON K. SHANMUGAM
KIRKLAND & ELLIS LLP
655 Fifteenth Street, N.W.
Washington, DC 20005
(202) 879-5000
(additional counsel on inside cover)
July 8, 2003
KATHLEEN M. SULLIVAN
559 Nathan Abbott Way
Stanford, CA 94305
(650) 725-9875
VALLE SIMMS DUTCHER
L. LYNN HOGUE
SOUTHEASTERN LEGAL
FOUNDATION, INC.
3340 Peachtree Road, N.E.
Suite 3515
Atlanta, GA 30326
(404) 365-8500
JAN WITOLD BARAN
THOMAS W. KIRBY
LEE E. GOODMAN
WILEY, REIN &
FIELDING LLP
1776 K Street, N.W.
Washington, DC 20006
(202) 719-7000
G. HUNTER BATES
FROST BROWN TODD LLC
400 West Market Street
32nd Floor
Louisville, KY 40202
(502) 589-5400
QUESTIONS PRESENTED
This brief will address the questions presented in No. 021674, McConnell v. FEC; No. 02-1676, FEC v. McConnell; and
No. 02-1702, McCain v. McConnell.
The questions presented in No. 02-1674, McConnell v. FEC,
are as follows:
1. Whether the district court erred by upholding portions of
the “soft money” provision (section 101) of the Bipartisan
Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155,
116 Stat. 81, because it constitutes an invalid exercise of
Congress’ power to regulate elections under Article I, Section 4,
of the Constitution; violates the First Amendment or the equal
protection component of the Fifth Amendment; or is
unconstitutionally vague.
2. Whether the district court erred by upholding portions of
the “electioneering communications” provisions (sections 203,
204, and 311) of BCRA, because they violate the First
Amendment or the equal protection component of the Fifth
Amendment, or are unconstitutionally vague.
3. Whether the district court erred by holding nonjusticiable
challenges to, and upholding, portions of the “advance notice”
provisions of BCRA (sections 201 and 212), because they
violate the First Amendment.
4. Whether the district court erred by holding nonjusticiable
challenges to, and upholding, the “coordination” provisions of
BCRA (sections 202, 211, and 214), because they violate the
First Amendment.
5. Whether the district court erred by holding nonjusticiable
challenges to, and upholding, the “attack ad” provision of
BCRA (section 305), because it violates the First Amendment.
The questions presented in No. 02-1676, FEC v. McConnell,
are as follows:
1. Whether the limitations on political parties imposed by
ii
Section 101 of BCRA are constitutional.
2. Whether the funding limitations and disclosure
requirements imposed by Sections 201 and 203 of BCRA with
respect to “electioneering communications” are constitutional.
3. Whether the limitations imposed by Section 213 of
BCRA on coordinated expenditures by a political party
committee are constitutional.
4. Whether the prohibition imposed by Section 318 of
BCRA on contributions to federal candidates or political party
committees made by minors is constitutional.
5. Whether the reporting and record-keeping requirements
imposed on broadcast stations by Section 504 are constitutional.
The questions presented in No. 02-1702, McCain v.
McConnell, are as follows:
1. Whether the three-judge district court erred in
invalidating on First Amendment grounds the provision
addressing the raising, directing, transferring, and use of funds
by political parties, federal candidates, and federal officeholders
(BCRA § 101).
2. Whether the three-judge district court erred in
invalidating on First Amendment grounds the provisions
addressing the use of funds from corporate and labor union
general treasuries to finance broadcast advertisements that are
intended or likely to influence federal elections, and disclosure
requirements for all such broadcast advertisements (BCRA
§§ 201, 203, 204).
3. Whether the three-judge district court erred in
invalidating on First Amendment grounds the provision
addressing the ability of political parties to make both
“independent” and “coordinated” expenditures to support the
campaigns of candidates they have nominated to seek federal
office (BCRA § 213).
iii
PARTIES TO THE PROCEEDINGS
This brief is filed on behalf of the following plaintiffs below,
who are appellants in No. 02-1674 and cross-appellees in No.
02-1676 and No. 02-1702: Senator Mitch McConnell;
Southeastern Legal Foundation, Inc.; Representative Bob Barr;
Center for Individual Freedom; National Right to Work
Committee; 60 Plus Association, Inc.; U.S. d/b/a Pro English;
the National Association of Broadcasters; and Thomas E.
McInerney.
The “federal defendants,” who are appellees in No. 02-1674
and/or cross-appellants in No. 02-1676, are the Federal Election
Commission (FEC) and David W. Mason, Ellen L. Weintraub,
Danny L. McDonald, Bradley A. Smith, Scott E. Thomas, and
Michael E. Toner, in their capacities as Commissioners of the
FEC; John D. Ashcroft, in his capacity as Attorney General of
the United States; the United States Department of Justice; the
Federal Communications Commission; and the United States of
America.
The “intervenor defendants,” who are appellees in No. 021674 and cross-appellants in No. 02-1702, are Senator John
McCain; Senator Russell Feingold; Representative Christopher
Shays; Representative Martin Meehan; Senator Olympia
Snowe; and Senator James Jeffords.
The following parties, many of whom are appellants in other
consolidated cases, were also plaintiffs in the district court:
Representative Mike Pence; Alabama Attorney General Bill
Pryor; Libertarian National Committee, Inc.; Alabama
Republican Executive Committee, as governing body for the
Alabama Republican Party; Libertarian Party of Illinois, Inc.;
DuPage Political Action Council, Inc.; Jefferson County
Republican Executive Committee; American Civil Liberties
Union; Associated Builders and Contractors, Inc.; Associated
Builders and Contractors Political Action Committee; Christian
Coalition of America, Inc.; Club for Growth, Inc.; Indiana
iv
Family Institute, Inc.; National Right to Life Committee, Inc.;
National Right to Life Educational Trust Fund; National Right
to Life Political Action Committee; Martin Connors; Barret
Austin O’Brock; Trevor M. Southerland; National Rifle
Association of America; National Rifle Association Political
Victory Fund; Emily Echols, a minor child, by and through her
next friends Tim and Windy Echols; Hannah McDow, a minor
child, by and through her next friends Tim and Donna McDow;
Isaac McDow, a minor child, by and through his next friends
Tim and Donna McDow; Jessica Mitchell, a minor child, by
and through her next friends Chuck and Pam Mitchell; Daniel
Solid, a minor child, by and through his next friends Kevin and
Bonnie Solid; Zachary C. White, a minor child, by and through
his next friends John and Cynthia White; Republican National
Committee (RNC); Mike Duncan, as member and Treasurer of
the RNC; Republican Party of Colorado; Republican Party of
Ohio; Republican Party of New Mexico; Dallas County (Iowa)
Republican County Central Committee; California Democratic
Party; Art Torres; Yolo County Democratic Central Committee;
California Republican Party; Shawn Steel; Timothy J. Morgan;
Barbara Alby; Santa Cruz County Republican Central
Committee; Douglas R. Boyd, Sr.; Victoria Jackson Gray
Adams; Carrie Bolton; Cynthia Brown; Derek Cressman;
Victoria Fitzgerald; Anurada Joshi; Peter Kostmayer; Nancy
Russell; Kate Seely-Kirk; Rose Taylor; Stephanie L. Wilson;
California Public Interest Research Group; Massachusetts
Public Interest Research Group; New Jersey Public Interest
Research Group; United States Public Interest Research Group;
The Fannie Lou Hamer Project; Association of Community
Organizers for Reform Now; Chamber of Commerce of the
United States; National Association of Manufacturers; National
Association of Wholesaler-Distributors; U.S. Chamber Political
Action Committee; American Federation of Labor and
Congress of Industrial Organizations; AFL-CIO Committee on
Political Education Political Contributions Committee;
Representative Ron Paul; Gun Owners of America, Inc.; Gun
v
Owners of America Political Victory Fund; Real Campaign
Reform.org; Citizens United; Citizens United Political Victory
Fund; Michael Cloud; Carla Howell; Representative Bennie G.
Thompson; and Representative Earl F. Hilliard.
vi
STATEMENT PURSUANT TO RULE 29.6
None of the appellants has a parent corporation, and no
publicly held company owns 10% or more of the stock of any of
the appellants.
vii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ...................................................i
PARTIES TO THE PROCEEDINGS................................... iii
STATEMENT PURSUANT TO RULE 29.6........................vi
TABLE OF AUTHORITIES ..................................................x
INTRODUCTION ..................................................................1
OPINIONS BELOW...............................................................2
JURISDICTION .....................................................................2
CONSTITUTIONAL AND STATUTORY
PROVISIONS.........................................................................2
STATEMENT OF THE CASE ..............................................3
A. Background...........................................................3
B. BCRA ...................................................................6
C. The District Court’s Decision...............................8
SUMMARY OF ARGUMENT............................................11
ARGUMENT........................................................................13
I. THE “SOFT MONEY” PROVISION OF BCRA
IS UNCONSTITUTIONAL......................................13
A. The “Soft Money” Provision Violates The
First Amendment Rights Of Free Speech And
Association. ........................................................14
B. The “Soft Money” Provision Constitutes An
Invalid Exercise Of Congress’ Power To
Regulate Elections Under Article I, Section 4,
Of The Constitution. ...........................................26
C. By Discriminating Against Political Parties,
The “Soft Money” Provision Violates The
First And Fifth Amendments. .............................35
viii
II. THE “ELECTIONEERING
COMMUNICATIONS” PROVISIONS OF
BCRA ARE UNCONSTITUTIONAL. ....................38
A. Under Buckley and MCFL, The Government
May Regulate Only Speech That Constitutes
“Express Advocacy.” ..........................................39
B. The Holdings In Buckley And MCFL Apply
Equally To Corporations And Unions. ...............45
C. Even If This Court Were To Abandon Buckley
And MCFL, The “Electioneering
Communications” Provisions Could Not
Survive Scrutiny. ................................................49
D. The “Electioneering Communications”
Provisions Are Overbroad Because They
Regulate Speech By Qualified Non-Profit
Corporations. ......................................................57
E. The “Electioneering Communications”
Provisions Are Vague And Underinclusive........57
III. OTHER PROVISIONS OF BCRA ARE
UNCONSTITUTIONAL. .........................................62
A. The “Advance Notice” Provisions Are
Unconstitutional..................................................63
B. The “Coordination” Provisions Are
Unconstitutional..................................................64
C. The “Attack Ad” Provision Is
Unconstitutional..................................................66
D. The “Forced Choice” Provision Is
Unconstitutional..................................................68
E. The “Minors” Provision Is Unconstitutional. .....71
ix
F. The “Broadcaster Records” Provision Is
Unconstitutional..................................................73
CONCLUSION.....................................................................75
x
TABLE OF AUTHORITIES
Page(s)
CASES
Abbott Labs. v. Gardner,
387 U.S. 136 (1967) ........................................................ 65
Alaska Airlines, Inc. v. Brock,
480 U.S. 678 (1987) ........................................................ 37
Austin v. Michigan Chamber of Commerce,
494 U.S. 652 (1990) ........................................................ 48
Baggett v. Bullitt,
377 U.S. 360 (1964) ........................................................ 60
Bellotti v. Baird,
443 U.S. 622 (1979) ........................................................ 71
Bethel Sch. Dist. No. 403 v. Fraser,
478 U.S. 685 (1986) ........................................................ 71
Bigelow v. Virginia,
421 U.S. 809 (1975) ........................................................ 65
Blitz v. United States,
153 U.S. 308 (1894) ........................................................ 29
Board of County Comm’rs v. Umbehr,
518 U.S. 668 (1996) ........................................................ 68
Board of Trs. of Univ. of Ala. v. Garrett,
531 U.S. 356 (2001) ........................................................ 21
Buckley v. Valeo,
424 U.S. 1 (1976) ..................................................... passim
California Democratic Party v. Jones,
530 U.S. 567 (2000) ...................................... 16, 18, 30, 70
California Pro-Life Council, Inc. v. Getman,
328 F.3d 1088 (9th Cir. 2003)......................................... 43
Carey v. Brown,
447 U.S. 455 (1980) ........................................................ 36
xi
Chamber of Commerce v. Moore,
288 F.3d 187 (5th Cir.),
cert. denied, 123 S. Ct. 536 (2002) ................................. 44
Citizens Against Rent Control/Coalition for Fair Housing
v. City of Berkeley,
454 U.S. 290 (1981) ........................................................ 19
Citizens for Responsible Gov’t State Political Action
Comm. v. Davidson,
236 F.3d 1174 (10th Cir. 2000)....................................... 44
City of Ladue v. Gilleo,
512 U.S. 43 (1994) .......................................................... 36
Clifton v. FEC,
114 F.3d 1309 (1st Cir. 1997) ......................................... 43
Colorado Republican Fed. Campaign Comm. v. FEC,
518 U.S. 604 (1996) ................................................. passim
Connally v. General Constr. Co.,
269 U.S. 385 (1926) .................................................. 58, 75
Cousins v. Wigoda,
419 U.S. 477 (1975) ........................................................ 16
Davis v. Bandemer,
478 U.S. 109 (1986) ........................................................ 38
Eisenstadt v. Baird,
405 U.S. 438 (1972) ........................................................ 67
Erznoznik v. City of Jacksonville,
422 U.S. 205 (1975) ........................................................ 64
Eu v. San Francisco County Democratic Cent. Comm.,
489 U.S. 214 (1989) .................................................. 16, 18
Ex parte Clarke,
100 U.S. 399 (1879) ........................................................ 29
Ex parte Siebold,
100 U.S. 371 (1879) ........................................................ 29
xii
Ex parte Yarborough,
110 U.S. 651 (1884) ........................................................ 29
Faucher v. FEC,
928 F.2d 468 (1st Cir. 1991) ........................................... 43
FEC v. Beaumont,
123 S. Ct. 2200 (2003) ................................................ 5, 22
FEC v. Christian Action Network, Inc.,
110 F.3d 1049 (4th Cir. 1997)......................................... 43
FEC v. Christian Coalition,
52 F. Supp. 2d 45 (D.D.C. 1999) .................................... 66
FEC v. Colorado Republican Fed. Campaign Comm.,
533 U.S. 431 (2001) ................................................. passim
FEC v. Furgatch,
807 F.2d 857 (9th Cir. 1987)........................................... 43
FEC v. Massachusetts Citizens for Life,
479 U.S. 238 (1986) ............................................ 40, 46, 57
FEC v. National Conservative Political Action Comm.,
470 U.S. 480 (1985) .......................................... 2, 5, 20, 46
First Nat’l Bank of Boston v. Bellotti,
435 U.S. 765 (1978) .................................................. 35, 47
Florida Star v. B.J.F.,
491 U.S. 524 (1989) ........................................................ 62
Freedman v. Maryland,
380 U.S. 51 (1965) .......................................................... 67
Ginsberg v. New York,
390 U.S. 629 (1968) ........................................................ 71
Gooding v. Wilson,
405 U.S. 518 (1972) ........................................................ 67
Keyishian v. Board of Regents of Univ. of State of N.Y.,
385 U.S. 589 (1967) ........................................................ 75
xiii
Kusper v. Pontikes,
414 U.S. 51 (1973) .......................................................... 16
Legal Servs. Corp. v. Velazquez,
531 U.S. 533 (2001) ........................................................ 68
Members of City Council of Los Angeles v. Taxpayers for
Vincent,
466 U.S. 789 (1984) ........................................................ 67
NAACP v. Alabama,
357 U.S. 449 (1958) ........................................................ 74
NAACP v. Button,
371 U.S. 415 (1963) ........................................................ 23
New York Times Co. v. Sullivan,
376 U.S. 254 (1964) .............................................. 1, 52, 68
Nike, Inc. v. Kasky,
539 U.S. ___ (2003) .................................................. 18, 48
Nixon v. Shrink Missouri Gov’t PAC,
528 U.S. 377 (2000) ............................................ 18, 20, 25
Oregon v. Mitchell,
400 U.S. 112 (1970) .................................................. 27, 30
Pacific Gas & Elec. Co. v. Public Utils. Comm’n,
475 U.S. 1 (1986) ............................................................ 47
Perry v. Sindermann,
408 U.S. 593 (1972) .................................................. 68, 69
Pipefitters v. United States,
407 U.S. 385 (1972) ........................................................ 45
Police Dep’t of Chicago v. Mosley,
408 U.S. 92 (1972) .......................................................... 35
Pope v. Williams,
193 U.S. 621 (1904) ........................................................ 30
R.A.V. v. City of St. Paul,
505 U.S. 377 (1992) ........................................................ 68
xiv
Red Lion Broad. Co. v. FCC,
395 U.S. 367 (1969) ........................................................ 62
Reno v. ACLU,
521 U.S. 844 (1997) ........................................................ 58
Republican Party of Minn. v. White,
536 U.S. 765 (2002) .................................................. 36, 39
Riley v. National Fed’n of Blind of N.C., Inc.,
487 U.S. 781 (1988) .................................................. 15, 18
Rosenberger v. Rector & Visitors of Univ. of Va.,
515 U.S. 819 (1995) ........................................................ 67
Schaumburg v. Citizens for a Better Env’t,
444 U.S. 620 (1980) ........................................................ 15
Smith v. Daily Mail Publ’g Co.,
443 U.S. 97 (1979) .......................................................... 62
Sugarman v. Dougall,
413 U.S. 634 (1973) ........................................................ 30
Sweezy v. New Hampshire,
354 U.S. 234 (1957) ........................................................ 16
Tashjian v. Republican Party of Conn.,
479 U.S. 208 (1986) ........................................................ 30
Thomas v. Collins,
323 U.S. 516 (1945) ........................................................ 63
Timmons v. Twin Cities Area New Party,
520 U.S. 351 (1997) ........................................................ 18
Tinker v. Des Moines Indep. Community Sch. Dist.,
393 U.S. 503 (1969) ........................................................ 71
U.S. Term Limits, Inc. v. Thornton,
514 U.S. 779 (1995) ........................................................ 28
United States v. Automobile Workers,
352 U.S. 567 (1957) .................................................. 45, 46
xv
United States v. CIO,
335 U.S. 106 (1948) .................................................. 45, 46
United States v. Kokinda,
497 U.S. 720 (1990) ........................................................ 15
United States v. Playboy Entm’t Group, Inc.,
529 U.S. 803 (2000) ........................................................ 39
United States v. Reese,
92 U.S. 214 (1875) .......................................................... 29
Vermont Right to Life Comm., Inc. v. Sorrell,
221 F.3d 376 (2d Cir. 2000) ............................................ 44
Virginia v. Hicks,
123 S. Ct. 2191 (2003) .................................................... 67
Watchtower Bible & Tract Society of N.Y., Inc. v. Village
of Stratton,
536 U.S. 150 (2002) ........................................................ 63
CONSTITUTION AND STATUTES
U.S. Const. art. I, § 4, cl. 1 .................................................. 27
U.S. Const. amend. I..................................................... passim
U.S. Const. amend. V ................................................... passim
U.S. Const. amend. XXVI ................................................... 72
2 U.S.C. § 441b ................................................................... 47
2 U.S.C. § 441f .................................................................... 71
Bipartisan Campaign Reform Act of 2002,
Pub. L. No. 107-155, 116 Stat. 81.................................. i, 2
§ 101 ......................................................................... passim
§ 201 ......................................................................... passim
§ 202 ...................................................................... 7, 10, 65
§ 203 ........................................................................ 7, 9, 38
§ 204 .................................................................. 7, 9, 38, 57
xvi
§ 212 ......................................................................... passim
§ 213 ......................................................................... passim
§ 304 .................................................................................. 8
§ 305 ................................................................ 8, 66, 67, 68
§ 311 ........................................................................ 8, 9, 38
§ 316 .................................................................................. 8
§ 318 ................................................................ 7, 10, 71, 72
§ 319 .................................................................................. 8
§ 403 .................................................................................. 8
§ 504 ......................................................................... passim
Federal Election Campaign Act of 1971,
Pub. L. No. 92-225, 86 Stat. 3........................................... 3
Federal Election Campaign Act Amendments of 1974,
Pub. L. No. 93-443, 88 Stat. 1263..................................... 3
Federal Election Campaign Act Amendments of 1976,
Pub. L. No. 94-283, 90 Stat. 475....................................... 3
OTHER AUTHORITIES
Lillian R. BeVier,
The Issue of Issue Advocacy: An Economic, Political,
and Constitutional Analysis,
85 Va. L. Rev. 1761 (1999)............................................. 44
144 Cong. Rec. S978 (daily ed. Feb. 25, 1998) ................... 62
147 Cong. Rec. S2611 (daily ed. Mar. 21, 2001) ................ 62
147 Cong. Rec. S2908 (daily ed. Mar. 26, 2001) ................ 25
147 Cong. Rec. S3045 (daily ed. Mar. 28, 2001) ................ 53
147 Cong. Rec. S3116 (daily ed. Mar. 29, 2001) ................ 61
148 Cong. Rec. S2117-18 (daily ed. Mar. 20, 2002) ........... 53
148 Cong. Rec. S2141 (daily ed. Mar. 20, 2002) ................ 53
xvii
Coordinated and Independent Expenditures,
68 Fed. Reg. 421 (Jan. 3, 2003)....................................... 64
Electioneering Communications,
67 Fed. Reg. 51,137 (Aug. 7, 2002) ................................ 63
Electioneering Communications,
67 Fed. Reg. 65,190 (Oct. 7, 2002) ................................. 61
FEC Advisory Op. 1978-10 ................................................... 5
FEC Advisory Op. 1979-17 ................................................... 5
FEC Advisory Op. 1995-25 ................................................... 5
Federal Election Commission,
Twenty Year Report (1995) ............................................. 30
The Federalist No. 59 (Clinton Rossiter ed. 1961)
(Alexander Hamilton)...................................................... 28
Craig B. Holman & Luke P. McLoughlin,
Buying Time 2000: Television Advertisements in the
2000 Federal Elections (Brennan Center 2001)....... passim
H.R. Conf. Rep. No. 94-1507 (1976),
reprinted in 1976 U.S.C.C.A.N. 946............................... 42
Jonathan S. Krasno & Daniel E. Seltz,
Buying Time 1998: Television Advertising in the 1998
Congressional Elections (Brennan Center 2000) ............ 53
Joseph Story,
Commentaries on the Constitution of the United States
(1st ed. 1833)................................................................... 28
The Supreme Court, 1989 Term, Leading Cases,
104 Harv. L. Rev. 209 (1990).......................................... 49
INTRODUCTION
Far from merely closing loopholes, the Bipartisan Campaign
Reform Act of 2002 (BCRA) wholly rewrites our Nation’s
campaign finance laws and works nothing less than a
fundamental reordering of our political process. While
BCRA’s details are complex, the principles that it upsets are
basic.
First and foremost is our “profound national
commitment to the principle that debate on public issues should
be uninhibited, robust, and wide-open, and that it may well
include vehement, caustic, and sometimes unpleasantly sharp
attacks on government and public officials.” New York Times
Co. v. Sullivan, 376 U.S. 254, 270 (1964). However
contentious the debate about the outer reaches of the First
Amendment, there can be no question but that political speech
and association lies at its core. With its encroachments on the
activities of actors at all levels of the political process, BCRA
cannot be justified without abandoning this first principle of
uninhibited, robust debate. Nor can it be defended under this
Court’s campaign finance jurisprudence. Even assuming that
Congress sought to solve a genuine problem by enacting BCRA
— and the law’s defenders have not identified a single example
of actual “corruption” motivating its enactment — BCRA
constitutes a wildly overbroad remedy.
BCRA also undermines other bedrock constitutional
principles. It contravenes the core principle that federal law
governs the conduct of federal elections, and state law the
conduct of state elections. Prior to BCRA’s enactment, federal
law solicitously accommodated the competing state interest in
regulating campaign activities that affect both federal and state
elections. BCRA, however, imposes a sweeping federal
regulatory scheme that reaches even activities that solely affect
state elections. Even the great federalizer, Alexander Hamilton,
recognized that federal intervention into state election processes
is so blatantly violative that it “require[s] no comment.”
Equally disturbing, BCRA regulates different actors in the
2
political process, and different types of speech, in disparate
fashion, without advancing any legitimate justification for
doing so. It disadvantages political parties in comparison with
interest groups; television stations in comparison with
newspapers; and so-called “attack ads” in comparison with
other ads. These and other forms of differential regulation
violate the basic principles of equality embodied in the First and
Fifth Amendments.
Ultimately, the Constitution demands that this Court err on
the side of protecting more speech, not less. As the Court noted
almost two decades ago, “[t]he fact that candidates and elected
officials may alter or reaffirm their own positions on issues in
response to political messages * * * can hardly be called
corruption, for one of the essential features of democracy is the
presentation to the electorate of varying points of view.” FEC
v. National Conservative Political Action Comm., 470 U.S. 480,
498 (1985) (NCPAC). That rule provides a sufficient basis for
holding the challenged provisions of BCRA unconstitutional.
OPINIONS BELOW
The district court’s opinions are reported at 251 F. Supp. 2d
176 and reprinted in the joint Supplemental Appendix to the
jurisdictional statements (“Supp. App.”) at 1sa-1382sa.
JURISDICTION
The district court entered judgment on May 2, 2003.
Appellants filed their notice of appeal and jurisdictional
statement on the same day. This Court noted probable
jurisdiction in these cases on June 5, 2003. This Court has
appellate jurisdiction pursuant to section 403(a)(3) of BCRA.
CONSTITUTIONAL AND STATUTORY PROVISIONS
The Bipartisan Campaign Reform Act of 2002 (BCRA), Pub.
L. No. 107-155, 116 Stat. 81, is reprinted in the Appendix to
appellants’ jurisdictional statement (“J.S. App.”) at 7a-68a.
Article I, Section 4, of the United States Constitution is
3
reprinted at J.S. App. 4a. The First Amendment of the
Constitution is reprinted at J.S. App. 5a. The Fifth Amendment
of the Constitution is reprinted at J.S. App. 6a.
STATEMENT OF THE CASE
A.
Background
The historical facts preceding the enactment of BCRA are
largely undisputed, and are set out at great length in the
opinions below. See Supp. App. 16sa-40sa (Kollar-Kotelly and
Leon), 168sa-186sa (Henderson). We summarize only the
essential facts here.
1. In 1971, Congress enacted the Federal Election
Campaign Act (FECA), the first comprehensive regulatory
scheme governing federal election campaigns. See Pub. L. No.
92-225, 86 Stat. 3 (codified as amended at 2 U.S.C. §§ 431455). As amended in 1974, see Pub. L. No. 93-443, 88 Stat.
1263, FECA had three principal components. FECA limited
the amount of money that could be contributed “for the purpose
of influencing [federal] elections” — money that would come to
be known as “hard money.” Individuals could contribute up to
$1,000 per candidate, and “political committees” (including
political action committees, or PACs) could contribute up to
$5,000.1 FECA also limited the amount of money that could be
spent in federal elections, restricting expenditures by any person
“relative to a clearly identified candidate” to $1,000. And
FECA limited “coordinated expenditures”: that is, expenditures
made on behalf of, and in agreement with, a federal candidate.
FECA generally treated coordinated expenditures as
“contributions” subject to the applicable contribution limits.
2. a. In Buckley v. Valeo, 424 U.S. 1 (1976), this Court
1
In 1976, Congress amended FECA to add further limits on the amounts that
individuals could contribute to political committees and party committees,
and the amounts that party committees could in turn contribute to candidates.
See Pub. L. No. 94-283, 90 Stat. 475. BCRA contains provisions raising
these contribution limits, which appellants are not challenging.
4
laid out the now-familiar framework for determining the
constitutionality of campaign finance regulations. The Court
recognized that both contributions and expenditures on behalf
of political candidates implicate the First Amendment rights of
free speech and association. See id. at 19-23. The Buckley
Court also recognized that the government had a compelling
interest in “the prevention of corruption and the appearance of
corruption.” Id. at 25. Although the Court did not explicitly
define “corruption,” it repeatedly referred to “quid pro quo”
arrangements in which contributions or expenditures were made
in exchange for some particular action. Id. at 26, 27, 45.
The Buckley Court upheld FECA’s contribution limits,
reasoning that such limits imposed lesser burdens on First
Amendment rights — and were thus subject to a lower degree
of scrutiny — than expenditure limits. See id. at 24-38.
However, the Court struck down FECA’s limits on independent
expenditures. See id. at 39-59. Critically, before striking down
the expenditure limits, the Court first narrowed those provisions
to cover only expenditures for what has come to be known as
“express advocacy”: that is, advertising that “in express terms
advocate[s] the election or defeat of a clearly identified
candidate.” Id. at 44. This narrowing construction excluded
from FECA’s reach so-called “issue advocacy”: for instance,
advertising that comments on positions taken by a clearly
identified candidate, but does not expressly advocate the
candidate’s election or defeat. Even after narrowing these
provisions, however, the Court struck them down on the ground
that independent expenditures did not pose a sufficient threat of
actual or apparent corruption. See id. at 45. In so doing, the
Court expressed approval of FECA’s treatment of coordinated
expenditures as contributions. See id. at 47. The Court
similarly narrowed a provision of FECA requiring the
disclosure of certain expenditures, but ultimately upheld that
provision. See id. at 74-82.
b. In the nearly three decades since Buckley, the Court has
5
remained faithful to Buckley’s dichotomous treatment of
contributions and expenditures. It has consistently upheld
federal limits on contributions, see, e.g., FEC v. Beaumont, 123
S. Ct. 2200 (2003), and coordinated expenditures, see, e.g.,
FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S.
431 (2001) (Colorado II), but struck down federal limits on
independent expenditures, see, e.g., NCPAC, 470 U.S. at 480.
3. In the years following Buckley, the federal regulatory
regime peacefully coexisted with the States’ respective
campaign finance regimes. Some States, such as Virginia,
allowed unlimited contributions to, and expenditures by, state
candidates and party committees; others, such as Vermont,
imposed even more stringent limits than those imposed by
federal law.
Questions quickly arose, however, as to who should regulate
the financing of activities, such as voter registration, voter
identification, and get-out-the-vote efforts, which had effects on
both federal and state elections. In 1978, the FEC declared that
state and local party committees could use a combination of
federally regulated funds (so-called “hard money”) and stateregulated funds (so-called “soft money”) to fund those
activities. See FEC Advisory Op. 1978-10. The FEC
subsequently allowed national party committees to use a similar
“allocation” of federally regulated and state-regulated funds.
See FEC Advisory Op. 1979-17. Over the next two decades,
the FEC extended the allocation regime to cover other
activities, including administrative expenses, party-promoting
(or “generic”) campaign activities, and, perhaps most
significantly, some so-called “issue advocacy.” See FEC
Advisory Op. 1995-25. During the 1990s, the raising and
spending of state-regulated funds by political party committees,
and the use of so-called “issue advocacy” by various groups,
expanded significantly. By 2002, the major parties were raising
a total of almost $500 million per election cycle in stateregulated funds. See Supp. App. 489sa (Kollar-Kotelly).
6
B.
BCRA
BCRA is composed of a confusing, sometimes internally
contradictory, patchwork of regulations, the most important of
which are discussed below.
1. Title I of BCRA regulates the use of so-called “soft
money”: that is, funds that had previously been subject only to
state regulation. Section 101 of BCRA bans national party
committees from receiving or spending state-regulated funds for
any purpose — even for activities that solely or primarily affect
state and local elections. Section 101 also bans national party
committees from soliciting state-regulated funds for, or
transferring state-regulated funds to, any other entity, including
state and local party committees.
In addition, section 101 bans state and local party committees
from spending state-regulated funds for what BCRA
euphemistically calls “federal election activity” — a category
that includes voter registration, voter identification, get-out-thevote activity, and party-promoting campaign activity whenever
there is a federal election on the ballot, and advertising that
refers to a federal candidate and “promotes,” “supports,”
“attacks,” or “opposes” the candidate. Because most States
hold their state and local elections at the same time as federal
elections, the practical effect of this provision is to ban state and
local party committees from using state-regulated funds for
covered activities even if those activities solely or primarily
affect state and local elections.
Section 101 also severely restricts federal officeholders and
candidates from raising state-regulated funds, and bans state
and local candidates from spending state-regulated funds on
advertising that refers to a federal candidate and “promotes,”
“supports,” “attacks,” or “opposes” the candidate.
2. Title II of BCRA is primarily directed toward the
regulation of “electioneering communications,” a new statutory
term that embraces certain types of so-called “issue advocacy.”
7
Sections 201 and 204 ban all corporations and unions, or
entities using funds donated by corporations and unions, from
making disbursements for “electioneering communications.”
Section 201 requires all persons who spend $10,000 on
“electioneering communications” to make disclosures to the
FEC regarding those disbursements. Section 203, in turn,
defines an “electioneering communication” as any broadcast
advertising carried within 30 days of a primary or 60 days of a
general election which “refers to a clearly identified candidate
for Federal office.” Anticipating that this definition might be
held unconstitutional, Congress included a “fallback”
definition, which defines an “electioneering communication” as
any broadcast advertising carried at any time which “promotes,”
“supports,” “attacks,” or “opposes” a federal candidate and “is
suggestive of no plausible meaning other than an exhortation to
vote for or against a specific candidate.”
Title II also contains a number of provisions relating to
disclosure and coordination. Sections 201 and 212 impose
disclosure requirements on persons who merely enter into a
contract to make disbursements for electioneering
communications or other regulated expenditures, even before
those outlays are actually made. Section 202 treats coordinated
disbursements for electioneering communications, like
coordinated expenditures, as contributions to the “supported”
candidates. Section 214 broadens the definition of “coordination,” repeals the FEC’s existing regulations on coordination,
and orders the FEC to promulgate regulations in support of the
new statutory definition of coordination. Finally, section 213
bans political parties from making both independent and certain
coordinated expenditures on behalf of a nominated candidate,
and instead forces them to choose between one and the other.
3. Title III of BCRA includes various miscellaneous
provisions. Section 318 bans minors from contributing
federally regulated money in any amount to a federal candidate,
and from contributing either federally regulated or state-
8
regulated money to a political party committee. Section 305
requires a federal candidate who wishes to take advantage of the
lowest available rate for broadcast advertising either to certify
that he or she will not refer to another candidate in any
advertising, or to include a specified identification or statement
in the ad. Belying Congress’ claim that the ordinarily
applicable limits for contributions and coordinated expenditures
are necessary to combat actual or apparent corruption, sections
304, 316, and 319 effectively protect incumbents by raising
those ordinarily applicable limits when candidates face
opponents using personal funds in their campaigns. And
section 311 establishes detailed identification requirements for
the sponsors of express advocacy or electioneering
communications.
4. Title V of BCRA contains section 504, which requires
broadcasters to collect and disclose records of requests to
purchase broadcast time for communications “relating to any
political matter of national importance,” even if those
communications are never actually made.
C.
The District Court’s Decision
Conceding that BCRA raised “serious constitutional
concerns,” President Bush nevertheless signed BCRA into law
on March 27, 2002. Eleven complaints were promptly filed in
the United States District Court for the District of Columbia,
challenging various aspects of the law. Pursuant to the judicialreview provisions in section 403 of BCRA, those cases were
expedited and consolidated before a single three-judge panel
(Henderson, Circuit Judge, and Kollar-Kotelly and Leon,
District Judges). More than a year later, in a series of fractured
opinions, the district court struck down some of the contested
provisions of BCRA and upheld others.
1. The district court invalidated most of section 101,
BCRA’s “soft money” provision. See Supp. App. 397sa-460sa
(Henderson), 887sa-1008sa (Kollar-Kotelly), 1084sa-1146sa
9
(Leon). It struck down almost all of the restrictions on national
party committees, with Judge Leon, in his controlling opinion
for the court, rewriting the statute to ban national committees
from spending state-regulated funds only for advertising that
refers to a federal candidate and “promotes,” “supports,”
“attacks,” or “opposes” that candidate. The court also held
unconstitutional the restrictions on state and local party
committees, except insofar as the statute bans state and local
committees from spending state-regulated funds for advertising
referring to federal candidates. And the court struck down a
provision banning party committees from soliciting funds for,
or donating funds to, certain tax-exempt organizations or
political committees. The court upheld the provisions limiting
the ability of federal officeholders and candidates to raise stateregulated funds, and banning state and local candidates from
spending state-regulated funds on advertising referring to
federal candidates.
2. The district court also invalidated the core of BCRA’s
“electioneering communications” provisions, contained in
sections 201, 203, 204, and 311. See id. at 106sa-128sa, 157sa158sa (Kollar-Kotelly and Leon), 345sa-380sa (Henderson),
776sa-886sa (Kollar-Kotelly), 1146sa-1169sa (Leon). The
district court agreed with plaintiffs that the “primary” and
“fallback” definitions of “electioneering communications” were
overbroad and vague, respectively. However, Judge Leon, in
his controlling opinion for the court, again rewrote the statute in
order to uphold it, severing the language in the “fallback”
definition requiring regulated advertising to “be suggestive of
no plausible meaning other than an exhortation to vote for or
against a specific candidate” and then upholding the “fallback”
definition as broadened. The court upheld virtually the entirety
of the disclosure provisions in sections 201 and 311.
3. The district court also invalidated the provision of
section 201 requiring advance disclosure of contracts to make
disbursements for “electioneering communications,” even
10
before they are made. Over Judge Henderson’s dissent,
however, the court refused to reach plaintiffs’ challenge to
section 212, which requires similar advance disclosure of
contracts to make independent expenditures, on the ground that
the FEC’s implementing regulations construe section 212 not to
require such advance disclosure. See id. at 106sa-128sa, 130sa134sa (Kollar-Kotelly and Leon), 380sa-384sa (Henderson).
Also over Judge Henderson’s dissent, the court rejected
plaintiffs’ challenges to the coordination provisions in sections
202 and 214, holding that an agreement is not constitutionally
required as a predicate for a finding of coordination and that
some of plaintiffs’ challenges were nonjusticiable on standing
and ripeness grounds. See id. at 128sa-130sa, 134sa-157sa
(Kollar-Kotelly and Leon), 384sa-396sa (Henderson). And the
court held that plaintiffs lacked standing to challenge section
305, the provision imposing restrictions on federal candidates
who wish to take advantage of the lowest available rate for
broadcast advertising. See id. at 8sa (per curiam), 467sa-472sa
(Henderson), 1008sa (Kollar-Kotelly).
The district court unanimously invalidated three other
provisions. The court concluded that section 213, which forces
political parties to choose whether to make independent or
certain coordinated expenditures on behalf of a nominated
candidate, is unconstitutional because it severely burdens
parties’ First Amendment right to make independent
expenditures. See id. at 396sa-397sa (Henderson), 886sa
(Kollar-Kotelly), 1169sa-1176sa (Leon). It invalidated section
318, which bans minors from making contributions or
donations of any amount to a federal candidate or political party
committee. See id. at 460sa-467sa (Henderson), 1009sa-1011sa
(Kollar-Kotelly), 1176sa-1181sa (Leon). And it struck down
section 504, the provision requiring broadcasters to collect and
disclose records of requests to purchase broadcast time, with a
majority concluding that defendants had failed to identify any
evidence that the provision served a cognizable governmental
11
interest. See id. at 371sa-384sa (Henderson), 1011sa (KollarKotelly), 1181sa-1184sa (Leon).
SUMMARY OF ARGUMENT
A. BCRA’s “soft money” provision violates the First
Amendment, and can be invalidated on that basis alone. The
provision severely burdens speech and associational rights, and
should therefore be subject to strict scrutiny. Under any
applicable level of scrutiny, however, it is invalid. The
provision cannot implicate the governmental interest in
preventing actual or apparent quid pro quo corruption, since it
regulates only donations to and disbursements by political
parties, rather than federal officeholders or candidates. The
Court should reject outright the defendants’ effort to defend the
provision on the theory that it is needed to avoid the mere
“possibility of the appearance of corruption,” or
“circumvention” of existing limits. Such unbridled justifications would sweep far beyond Buckley and allow the regulation
of virtually any activity in the realm of campaign financing. As
this Court noted almost a decade ago, the use of state-regulated
funds for activities such as voter registration and get-out-thevote efforts presents only the most attenuated opportunity for
corruption, and, to the extent that any such opportunity exists,
Congress could readily have enacted more narrowly tailored
alternatives, such as a cap on the amount of state-regulated
funds that could be given to national parties.
BCRA’s “soft money” provision is unconstitutional for two
additional reasons. First, the provision trenches on the
prerogatives of the several States by exceeding Congress’
power under the Elections Clause. That clause allows Congress
to regulate the financing of federal campaigns, but not state
campaigns. The provision overrides longstanding state
regulatory mechanisms by limiting the activities of political
parties, officeholders, and candidates, even if those activities
affect both federal and state elections, or have no practical
effect on federal elections at all. Second, the provision curtails
12
speech by political parties but not identical speech by other
entities engaged in the political process, in violation of the
equality principle embodied in the First and Fifth Amendments.
It will effect a massive transfer of funds from the political
parties to narrowly focused interest groups, thereby detracting
from the crucial role that parties have played in our political
process.
B. BCRA’s “electioneering communications” provisions
also violate the First Amendment. Under this Court’s landmark
decision in Buckley, the government may regulate independent
expenditures only for advertising that expressly advocates the
election or defeat of a clearly identified candidate. To prevail,
defendants must not only convince this Court to jettison stare
decisis values and overrule Buckley, but also persuade the Court
to promulgate a new rule prohibiting corporations and unions
from engaging in core political speech about issues and
candidates. Even if this Court were to agree with defendants in
both respects, BCRA’s “electioneering communications”
provisions suffer from other constitutional infirmities, including
overbreadth, vagueness, and underinclusiveness.
C. Finally, a number of BCRA’s other provisions are
likewise unconstitutional.
BCRA’s “advance notice”
provisions require disclosures even before expenditures are
made, absent any cognizable justification for doing so. The
“coordination” provisions impermissibly broaden the definition
of coordination, with the result that even mere discussions with
a candidate or political party are sufficient to render an
expenditure “coordinated” (and thereby subject to the limits
applicable to contributions). The “attack ad” provision
improperly conditions the availability of lower advertising rates
on a candidate’s agreement either that the candidate will not
engage in “negative” advertising, or that the candidate will
include certain content in his or her ad. The “forced choice”
provision imposes a similarly unconstitutional condition,
requiring political parties to choose whether to make
13
independent or certain coordinated expenditures on behalf of a
nominated candidate. The “minors” provision bans minors
from making contributions to candidates or political parties, in
stark contravention of their undoubted constitutional rights.
And the “broadcaster records” provision imposes onerous
recordkeeping and disclosure obligations on broadcasters —
obligations that are both substantially overbroad and decidedly
vague. All of these provisions, too, should be invalidated.
ARGUMENT
I.
THE “SOFT MONEY” PROVISION OF BCRA IS
UNCONSTITUTIONAL.
For many decades before BCRA’s enactment, federal law
governed the financing of federal election campaigns, and state
law the financing of state campaigns. Where activities had
effects on both federal and state elections — such as voter
registration — political party committees were allowed to use a
combination of federally regulated funds (so-called “hard
money”) and state-regulated funds (so-called “soft money”) to
pay for those activities. This dual regime reflected an assiduous
regard for our federal system.
BCRA changes all that. For the first time, Congress has
enacted legislation that dramatically restricts the funding of
political activity on both the federal and state levels. Section
101 of BCRA imposes stringent and unprecedented restrictions
on the raising and spending of state-regulated funds by political
parties. And it severely burdens the activities of federal and
state officeholders and candidates.
As we will now explain, this new provision restricts the
rights of free speech and association in violation of the First
Amendment. The district court correctly struck down most of
section 101 on First Amendment grounds, though it erred by
upholding the remainder. Equally fundamental, section 101 is
unconstitutional on two additional grounds that the majority
below largely did not reach. First, section 101 trenches on the
14
prerogatives of the States by exceeding Congress’ power to
regulate federal elections under Article I, Section 4, of the
Constitution. Second, section 101 impermissibly discriminates
against speech by political parties in violation of the First and
Fifth Amendments.
A.
The “Soft Money” Provision Violates The First
Amendment Rights Of Free Speech And
Association.
In this section, we first demonstrate that section 101 burdens
significant speech and associational rights, and should therefore
be subject to strict scrutiny under this Court’s settled
jurisprudence. We then demonstrate that section 101 is not
narrowly tailored to meet the government’s compelling interest
in preventing actual corruption or the appearance of corruption.
1. Section 101 affects the speech and associational rights of
donors, political parties, and others in several pivotally
important ways.
a. Like the contribution and expenditure limits at issue in
Buckley, section 101 burdens the speech and associational rights
of donors, who will no longer be able to give donations
previously permitted by state law to national party committees,
and of the parties themselves, which will no longer be able to
spend state-regulated funds either at all (in the case of national
party committees) or except for certain limited activities that do
not qualify as “federal election activity” (in the case of state and
local party committees). In Buckley, the Court noted (as to
expenditures) that “[a] restriction on the amount of money a
person or group can spend on political communication during a
campaign necessarily reduces the quantity of expression by
restricting the number of issues discussed, the depth of their
exploration, and the size of the audience reached.” 424 U.S. at
19. The Court noted (as to contributions) that contributions,
like expenditures, have a speech component, though it
suggested that “the expression rests solely on the
15
undifferentiated, symbolic act of contributing.” Id. at 21. And
the Court noted that limitations on contributions and
expenditures implicated not just the right of free speech, but the
right of free association as well. See id. at 22.
b. Section 101 burdens speech rights in additional ways not
at issue in Buckley. For instance, it imposes restrictions not just
on contributions and expenditures, but also on solicitations.
This Court has repeatedly affirmed that a restriction on
solicitations is the most direct form of restriction on speech.
See, e.g., United States v. Kokinda, 497 U.S. 720, 725 (1990);
Riley v. National Fed’n of Blind of N.C., Inc., 487 U.S. 781,
788-89 (1988); Schaumburg v. Citizens for a Better Env’t, 444
U.S. 620, 632 (1980). That is unsurprising, for “solicitation is
characteristically intertwined with informative and perhaps
persuasive speech seeking support for particular causes or for
particular views on economic, political, or social issues,” id.,
and “without solicitation the flow of such information and
advocacy would likely cease,” id.
Section 101 aggressively regulates the solicitation of both
state-regulated and federally regulated funds. It bans national
committees outright from soliciting state-regulated funds, see
BCRA § 101(a) (adding new FECA § 323(a)(1)), and from
soliciting a new category of federally regulated funds known as
“Levin” funds, which can be used for a narrow subset of
“federal election activity” known as “Levin” activities, see id.
(adding new FECA § 323(b)(2)(C)(i)). It bans state and local
committees from soliciting Levin federally regulated funds on
behalf of, or jointly with, other state and local committees. See
id. (adding new FECA § 323(b)(2)(B)(iv)). It bans all party
committees from soliciting any type of funds for certain taxexempt organizations or political committees. See id. (adding
new FECA § 323(d)). Finally, it bans federal officeholders and
candidates from soliciting state-regulated funds in connection
with any state or local election on behalf of party committees or
candidates unless those funds comply with the source-and-
16
amount requirements of federal law, see id. (adding new FECA
§ 323(e)(1)(B)), and also bans them from soliciting Levin
federally regulated funds, see id. (adding new FECA
§ 323(e)(1)(A)).2 All of these restrictions deeply compromise
the speech rights of the regulated actors.
c. In addition to speech rights, section 101 burdens
associational rights in ways not implicated in Buckley.
Specifically, by pervasively regulating the relationships among
party committees, and between party committees and others,
section 101 impermissibly interferes with the associational
rights of political parties and their members. It is beyond
question that “[t]he right to associate with the political party of
one’s choice is an integral part” of the First Amendment
freedom of association. Kusper v. Pontikes, 414 U.S. 51, 57
(1973). It is also well established that the right of association
inheres not only in the members of a political party, but also in
the party itself. See, e.g., Eu v. San Francisco County
Democratic Cent. Comm., 489 U.S. 214, 224 (1989); Cousins v.
Wigoda, 419 U.S. 477, 487 (1975); Sweezy v. New Hampshire,
354 U.S. 234, 250 (1957). So too, when the government
attempts to regulate the internal structure of political parties, it
infringes on the parties’ associational rights. See California
Democratic Party v. Jones, 530 U.S. 567, 573 (2000); Eu, 479
U.S. at 229, 230-31.
i. Section 101 interferes directly with the ability of
different committees within a single political party to associate
freely with each other. Most significantly, it bans national
committees from transferring state-regulated funds to state and
local committees, see BCRA § 101(a) (adding new FECA
§ 323(a)(1)); from soliciting Levin federally regulated funds for
state and local committees, see id. (adding new FECA
2
Section 101 also imposes complex restrictions on federal officeholders and
candidates in connection with the solicitation of state-regulated funds for taxexempt organizations. See BCRA § 101(a) (adding new FECA § 323(e)(4)).
17
§ 323(b)(2)(C)(i)); and from providing any funds to state and
local committees for use in Levin activities, see id. (adding new
FECA § 323(b)(2)(B)(iv)). It also bans state and local
committees from soliciting Levin federally regulated funds on
behalf of, or jointly with, other state and local committees, see
id., and from transferring Levin funds to those committees, see
id. (adding new FECA § 323(b)(2)(C)(ii)). As numerous
witnesses testified below, the net effect of these provisions is to
strip from political parties much of their traditional power both
to engage in coordinated fundraising and to allocate funds on
the national, state, and local levels. See, e.g., Supp. App.
304sa-306sa (Henderson), 1222sa-1223sa, 1239sa (Leon). The
provisions will also force political parties to shift their
fundraising activities from the national committees, which have
developed comparative expertise in fundraising, see, e.g., id. at
1219sa, 1221sa-1222sa (Leon), to state and local committees.
ii. Section 101 also interferes with the ability of party
committees to associate with others, including their own
members. It severely restricts federal officeholders and
candidates from participating in fundraising programs run by
state and local committees. See BCRA § 101 (adding new
FECA § 323(e)(1)). It bans party committees from soliciting
funds for, or donating funds to, certain tax-exempt
organizations and political committees. See id. (adding new
FECA § 323(d)). Finally, to the extent that it treats certain
federal officeholders or state and local party officials as
“officers or agents” of the national committees, it bans those
individuals from soliciting state-regulated funds or Levin
federally regulated funds. See id. (adding new FECA §§ 323(a),
323(b)(2)(C)(i)).
When considered as a whole, these
associational burdens are both substantial and unprecedented.
2. Because of its severe burdens on free speech and
association, section 101 should be subject to strict scrutiny.
It is well established that “exacting” or strict scrutiny is
applied to limitations on independent expenditures, see, e.g.,
18
Colorado II, 533 U.S. at 440-41; limitations on solicitations,
see, e.g., Riley, 487 U.S. at 795-96; and any other limitations
that impose a severe burden on associational rights, see, e.g.,
California Democratic Party, 530 U.S. at 582; Timmons v.
Twin Cities Area New Party, 520 U.S. 351, 358 (1997); Eu, 489
U.S. at 231. Strict scrutiny therefore unquestionably applies to
all of the provisions of section 101 that were upheld (as
modified) by the district court. See BCRA § 101(a) (adding
new FECA §§ 323(a), 323(b)(1), 323(e), 323(f)); BCRA
§ 101(b) (adding new FECA § 301(20)(A)(iii)).
Defendants may well urge, as they did before the district
court, that a lower degree of scrutiny is appropriate because
section 101 also contains a limitation on contributions: namely,
the subsection that bars donations of state-regulated funds to
national party committees. See BCRA § 101(a) (adding new
FECA § 323(a)(1)). To be sure, this Court has applied a lower
level of scrutiny to limitations on contributions. See, e.g.,
Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 387-88
(2000). But section 101 is far more than a contributionlimitation provision. Because section 101 was enacted as an
integrated whole, this Court should treat section 101
accordingly, and subject its far-reaching requirements to strict
scrutiny.3 Even if the Court applies varying standards of review
to different parts of section 101, however, it should still apply
strict scrutiny to the subsection barring donations of stateregulated funds to national committees, for two reasons.
First, unlike the provisions of FECA at issue in Buckley,
section 101 does not impose any new limits on the amounts of
contributions to national committees: instead, it merely subjects
funds used by national committees for a variety of previously
unregulated purposes to the preexisting source-and-amount
3
Cf. Nike, Inc. v. Kasky, 539 U.S. ___, ___ (2003) (slip op., at 12-13)
(Breyer, J., joined by O’Connor, J., dissenting) (applying heightened
scrutiny to mixture of commercial and non-commercial speech).
19
limitations of FECA, and requires that national committees
raise and spend federally regulated, rather than state-regulated,
funds for those activities. Because section 101 thereby
effectively regulates the uses for which money is raised and
spent, rather than imposing any new limits on the amounts of
contributions or expenditures, Buckley’s dichotomy between
contributions and expenditures is inapposite, and strict scrutiny
is warranted.
Second, this Court has squarely concluded that limitations on
the amount of contributions to third parties, unlike
contributions to candidates, are subject to strict scrutiny. See
Citizens Against Rent Control/Coalition for Fair Housing v.
City of Berkeley, 454 U.S. 290, 299 (1981). That rule makes
eminent sense, because a limitation on the amount of
contributions to third parties effectively limits the amount of
expenditures by the third parties themselves (and, by extension,
by the contributors who associate through those third parties).
See id.; Supp. App. 398sa-409sa (Henderson). To be sure, this
Court has seemingly applied a lower degree of scrutiny to
limitations on contributions to third parties where those
contributions could be used to circumvent limits on
contributions directly to candidates. See California Med. Ass’n
v. FEC, 453 U.S. 182, 198 (1981) (plurality opinion); Buckley,
424 U.S. at 38. Because donations of state-regulated funds
cannot be used for express advocacy or other activities that
solely support a candidate for federal office, however, such
funds are not interchangeable with federally regulated funds
contributed directly to candidates. The donation limit in section
101 will effectively limit the amount that national committees
can spend on a variety of activities that only indirectly and
partially assist a candidate for federal office, such as voter
registration, voter identification, and get-out-the-vote efforts. It
should therefore be subject to strict scrutiny.
3. Section 101 violates the First Amendment because it
fails strict, or even intermediate, scrutiny. We begin by
20
identifying the governmental interests implicated by section
101, then consider whether section 101 is sufficiently tailored.
a. This Court held in Buckley, and has since reaffirmed, that
“preventing corruption or the appearance of corruption are the
only legitimate and compelling government interests thus far
identified for restricting campaign finances.” FEC v. National
Conservative Political Action Comm., 470 U.S. 480, 496-97
(1985). “The hallmark of corruption,” in turn, “is the financial
quid pro quo: dollars for political favors.” Id. at 497; accord
Buckley, 424 U.S. at 26, 27, 45.
Section 101 cannot implicate the governmental interest in
preventing actual or apparent corruption in the classic, quid pro
quo sense, since a political party (unlike a current or future
officeholder) cannot respond to a donation by taking some
legislative action, but instead can act only through its
officeholders. Unsurprisingly, defendants have failed, despite
voluminous discovery, to identify a single instance of quid pro
quo corruption attributable to the donation of state-regulated
funds. See Supp. App. 325sa-328sa, 409sa-411sa, 425sa
(Henderson), 1103sa-1111sa (Leon). Consequently, defendants
contend that the donation of state-regulated funds can be
corrupting because it allows donors to buy not some particular
legislative action, but rather “access” to officeholders through
their political parties. Defendants have suggested that this
alleged purchasing of “access” gives rise not to actual
corruption or the appearance of corruption, but rather to the
“possibility of the appearance of corruption.” Supp. App.
430sa, 433sa (Henderson) (emphasis added).
We recognize that language in some of this Court’s most
recent campaign finance opinions suggests that the
government’s interest in preventing corruption sweeps beyond
preventing classic, quid pro quo corruption, to stemming the
“broader threat from politicians too compliant with the wishes
of large contributors,” Shrink Missouri, 528 U.S. at 389, and
barring “undue influence on an officeholder’s judgment, and the
21
appearance of such influence,” Colorado II, 533 U.S. at 441.
However broad these formulations may be, they do not reach as
far as defendants’ “access”-based interest. Defendants’
“unexamined, anecdotal accounts” aside, Board of Trs. of Univ.
of Ala. v. Garrett, 531 U.S. 356, 370 (2001), there are no
legislative findings, and certainly no valid statistical evidence,
that money secures access to officeholders, see Supp. App.
328sa-332sa (Henderson), 1081sa (Kollar-Kotelly), 1263sa1264sa (Leon). Even if there were sufficient evidence of such a
link, however, defendants’ “access”-based interest proves too
much. Assuming that officeholders naturally provide greater
access to their supporters, and specifically to their financial
supporters (whether or not that includes the financial supporters
of their political parties), than to their opponents, the only
solution would be to take all money (whether federally
regulated and state-regulated) out of politics altogether —
which BCRA does not purport to do. In any event, this Court
has squarely rejected such a broad equality-based rationale as a
justification for campaign finance regulation. See, e.g.,
Buckley, 424 U.S. at 48-49.
In the alternative, BCRA’s defenders have contended that the
government has an interest in imposing additional limits that,
while themselves not justified by the anti-corruption rationale,
are necessary to prevent circumvention of existing limits that
are justified by the anti-corruption rationale.
To the extent this Court has invoked such a rationale, it has
done so only in a limited context: namely, to uphold limits on
contributions that could be used for the same purposes as direct
contributions to federal candidates themselves. Thus, in
Buckley, the Court upheld the $25,000 federal limit on
aggregate contributions by an individual in a calendar year, on
the ground that otherwise an individual could circumvent the
$1,000 limit on contributions to a single candidate simply by
contributing to that candidate’s political party or sympathetic
PACs. See 424 U.S. at 38. Similarly, in California Medical,
22
the Court upheld the $5,000 federal limit on contributions to
PACs, on the virtually identical rationale that otherwise an
individual could circumvent the $1,000 limit on contributions
to a single candidate and the $25,000 annual limit on aggregate
contributions. See 453 U.S. at 198 (plurality opinion); id. at
203 (Blackmun, J., concurring in part and concurring in the
judgment). In its recent decision in Beaumont, the Court
suggested that a similar rationale could be used to justify the
ban on contributions by corporations. See 123 S. Ct. at 2207.
Finally, in Colorado II, the Court, while frequently referring to
“circumvention,” upheld limits on coordinated expenditures by
political parties on the basis of the longstanding rule, dating
from Buckley, that expenditures coordinated with federal
candidates are the functional equivalent of contributions to the
candidates themselves. See 533 U.S. at 442-43. Pivotally,
however, the Court has never embraced an anti-circumvention
rationale to justify limitations on donations that are not
interchangeable with direct contributions to candidates, much
less limitations on independent expenditures (which, of course,
are entitled to the fullest First Amendment protection). Indeed,
the fifth-vote concurrence in California Medical expressly
disclaimed application of the anti-circumvention rationale to
independent expenditures. See 453 U.S. at 203 (Blackmun, J.,
concurring in part and concurring in the judgment).
In reality, defendants’ anti-circumvention rationale is no
rationale at all. Any currently lawful use of money to affect the
political process could be characterized as an attempt to
“circumvent” currently existing prohibitions on other uses. If
this Court were to uphold BCRA on the basis of the anticircumvention rationale, defendants would likely justify future
restrictions as necessary to prevent circumvention of BCRA,
much as they have justified BCRA as necessary to prevent
circumvention of existing law (and, indeed, have justified
certain provisions of BCRA as necessary to prevent
circumvention of other provisions of BCRA). This house of
23
cards cannot stand. The Court should reject defendants’
perverse attempt to fashion a limitless “prophylactic” rationale
for suppressing, rather than protecting, core constitutional
rights. See NAACP v. Button, 371 U.S. 415, 438 (1963).
b. The remaining question is whether section 101 is
sufficiently tailored to the government’s interest in preventing
actual or apparent corruption. It is not.
i. At the outset, it is questionable whether section 101 is
tailored to the government’s interest in preventing corruption at
all. To conclude that it is, the Court would have to indulge two
critical assumptions.
First, the Court would have to assume that the donation of
state-regulated funds to, or the spending of state-regulated funds
by, a political party is just as corrupting of a candidate as a
contribution directly to the candidate. To make such an
assumption would work a major departure from existing law.
In Colorado Republican Fed. Campaign Comm. v. FEC, 518
U.S. 604 (1996) (Colorado I), this Court held that Congress
could not constitutionally limit independent expenditures of
federally regulated funds by political parties. The plurality
expressly rejected the argument that there are “any special
dangers of corruption associated with political parties that tip
the constitutional balance in a different direction.” Id. at 616.
Indeed, the Court noted that expenditures by political parties
were designed not only to get the party’s candidates elected, but
to promote the views of the party’s members. See id. (plurality
opinion); id. at 629 (Kennedy, J., concurring in part and
dissenting in part); id. at 646 (Thomas, J., concurring in part
and dissenting in part). Defendants advance no justification for
treating the disbursement of state-regulated funds by political
parties (or the donation of state-regulated funds to political
parties for use in such disbursements) differently from
expenditures of federally regulated funds by the same parties for
24
purposes of First Amendment analysis.4
Second, the Court would have to assume that a donation of
state-regulated funds to be used for activities that do not
exclusively serve to get a candidate elected, but instead benefit
candidates up and down the party ticket (such as partypromoting campaign activity), or the spending of state-regulated
funds for such activities, is just as corrupting of a candidate as a
contribution to be used for activities that exclusively do so
(such as express advocacy). Again, this Court’s decisions
counsel against such an assumption. In Colorado I, the
plurality expressly recognized that “FECA permits unregulated
‘soft money’ contributions to a party for certain activities.” 518
U.S. at 616. Nevertheless, the plurality stated outright that “the
opportunity for corruption posed by these greater opportunities
for contributions is, at best, attenuated.” Id. (emphasis added);
see also id. at 647 (Thomas, J., concurring in part and
dissenting in part) (noting that “there is little risk that an
individual donor could use a party as a conduit for bribing
candidates”). As a matter of common sense, because stateregulated funds by definition can be used only for activities that
influence state elections (or in combination with federally
regulated funds, for activities that influence both state and
federal elections), a candidate will feel less indebted, ceteris
paribus, to a donor for contributing state-regulated funds, which
will affect his own election only indirectly and partially (if at
all), than to another donor who contributes federally regulated
funds, which can be used directly and entirely to support his
4
In upholding limits on coordinated expenditures by political parties, the
Court did state that political parties “act as agents for spending on behalf of
those who seek to produce obligated officeholders.” Colorado II, 533 U.S.
at 452. That makes our point. Since Buckley, the Court has treated
coordinated expenditures as the functional equivalent of direct contributions
to a candidate. See id. at 444. And the Court went on in Colorado II to
emphasize that, in upholding limits on coordinated expenditures by political
parties, it was treating political parties no differently from individuals or
PACs, which are similarly limited. See id. at 455.
25
election. See, e.g., Supp. App. 1105sa-1106sa (Leon).
ii. Even if the disbursement or donation of state-regulated
funds could be corrupting in some circumstances, section 101 is
substantially overbroad. If Congress were truly concerned with
actual or apparent corruption, it could readily have enacted a
more narrowly tailored alternative.
For instance, to the extent “large” donations of stateregulated funds are seen to be corrupting, see Shrink Missouri,
528 U.S. at 389, Congress could have imposed a cap on the
amount of such donations. Indeed, the Hagel Amendment,
which Congress considered and rejected, would have done just
that. Specifically, it would have imposed a $60,000 aggregate
limit on donations of federally regulated funds and stateregulated funds from any one donor to a national party
committee. See 147 Cong. Rec. S2908 (daily ed. Mar. 26,
2001) (proposed amendment to S. 27, 107th Cong. (2001)).
Instead, section 101 bans any donations of state-regulated funds
to national committees, no matter how small, and further bans
disbursements of state-regulated funds by national committees
for any purpose (and by state and local committees for “federal
election activity”). In addition, section 101 imposes a variety of
restrictions with no evident connection to any concern about
large donations, including (but not limited to) the ban on joint
efforts by state and local committees to raise Levin funds; the
ban on transfers of Levin funds between state and local
committees; and the ban on solicitations by party committees
for, or donations by party committees to, certain tax-exempt
organizations and political committees.
Likewise, to the extent particular uses of state-regulated
funds are seen as corrupting, Congress could have imposed
narrower limits on the uses to which such funds could be put.
Specifically, Congress could have limited the use of stateregulated funds only for those activities that arguably have a
more direct effect on a federal candidate’s election (such as
advertising that refers to a federal candidate, assuming for the
26
moment that such disbursements could constitutionally be
regulated),5 and not for those activities whose effect on a federal
candidate’s election is concededly more attenuated (such as
party-promoting campaign activity). Instead, section 101 bans
all uses of state-regulated funds by national committees, and
restricts a number of uses of state-regulated funds by state and
local committees which primarily or only affect state elections.
And section 101 imposes a variety of restrictions on the transfer
and solicitation of funds, which cannot be justified by any
concern about the use of state-regulated funds for certain
activities. This is overkill in the extreme. Given the
availability of more narrowly tailored alternatives, section 101
violates the First Amendment.
B.
The “Soft Money” Provision Constitutes An Invalid
Exercise Of Congress’ Power To Regulate Elections
Under Article I, Section 4, Of The Constitution.
Because the district court struck down most of section 101 on
First Amendment grounds, it had almost no occasion to reach
plaintiffs’ Elections Clause arguments, though concerns about
section 101’s regulation of state and local activities seemed to
animate the district court’s decision that most of section 101
was overbroad. See, e.g., Supp. App. 433sa (Henderson)
(noting that provisions regulating state and local party
5
In his controlling opinion, Judge Leon upheld provisions of section 101
that (1) restrict state and local party committees from making disbursements
of state-regulated funds for certain advertising that refers to a federal
candidate, see BCRA § 101(a) (adding new FECA § 323(b)(1)); BCRA
§ 101(b) (adding new FECA § 301(20)(A)(iii)), and (2) restrict state and
local candidates from making disbursements of state-regulated funds for such
advertising, see BCRA § 101(a) (adding new FECA § 323(f)(1)). Judge
Leon also rewrote section 101 to add a similar restriction for national party
committees. See Supp. App. 1111sa-1118sa. Whether as written by
Congress or as rewritten by Judge Leon, however, all of these provisions
violate the First Amendment for the simple reason that they impermissibly
regulate expenditures for speech that does not constitute express advocacy.
See infra Part II.
27
committees “apply wholesale to state and local party
expenditures for state-focused election activities that barely
affect federal elections”), 1101sa (Leon) (concluding that “the
evidence, legal precedent, and common sense * * * do not
support Congress’ effort to regulate nonfederal funds used for
nonfederal and mixed purposes”). Quite apart from First
Amendment concerns, section 101 should fall in its entirety.
Section 101 massively intrudes into a core area of state
sovereignty — the ability of States to regulate their own
elections. The Elections Clause authorizes Congress to regulate
the financing of federal, not state, campaigns.
1. a. The Elections Clause states: “The Times, Places and
Manner of holding Elections for Senators and Representatives,
shall be prescribed in each State by the Legislature thereof; but
the Congress may at any time by Law make or alter such
Regulations, except as to the Places of chusing Senators.” U.S.
Const. art. I, § 4, cl. 1. In Buckley, this Court assumed that the
Elections Clause enabled Congress to regulate the financing of
federal campaigns. See 424 U.S. at 13. But it added that none
of the parties was challenging Congress’ power to enact FECA.
See id. at 13-14.
Whatever the merits of the Court’s assumption in Buckley
that the power to regulate the “Manner of holding Elections”
entails the power to regulate the manner of financing election
campaigns — which appellants, like the plaintiffs in Buckley,
do not challenge — the text and history of the Elections Clause,
and subsequent case law interpreting it, make clear that the
Constitution does not empower Congress to regulate the
financing of campaigns for state office.
b. The Elections Clause arose from a carefully crafted
compromise between delegates to the Constitutional
Convention who wanted the States to have plenary power over
the election of federal officials, and delegates who wanted
Congress to enjoy that power. See Oregon v. Mitchell, 400 U.S.
112, 119 n.2 (1970) (opinion of Black, J.); 2 Joseph Story,
28
Commentaries on the Constitution of the United States 280-92
(1st ed. 1833). Under that compromise, States were given the
power to enact regulations concerning federal elections, but
Congress was given the power to override those regulations.
The latter power was designed to counteract the “potential for
States’ abuse” of the former. U.S. Term Limits, Inc. v.
Thornton, 514 U.S. 779, 808-09 (1995). Indeed, the Framers
were concerned that, if States enjoyed unlimited power over the
election of federal officials, they might refuse to provide for
their election at all. See, e.g., The Federalist No. 59, at 363
(Clinton Rossiter ed. 1961) (Alexander Hamilton).
What is abundantly clear, however, is that the Framers left
untouched the power of the States to regulate state elections.
As Hamilton wrote in spirited defense of the Elections Clause:
Suppose an article had been introduced into the
Constitution, empowering the United States to regulate
the elections for the particular States, would any man
have hesitated to condemn it, both as an unwarrantable
transposition of power, and as a premeditated engine for
the destruction of the State governments? The violation
of principle, in this case, would have required no
comment; and, to an unbiased observer, it will not be
less apparent in the project of subjecting the existence
of the national government, in a similar respect to the
pleasure of the State governments. An impartial view
of the matter cannot fail to result in a conviction that
each, as far as possible, ought to depend on itself for its
own preservation.
Id.; see also 2 Story, supra, at 284-85 (paraphrasing Hamilton).
c. In a series of cases after the Civil War, the Court
confirmed what is plain from the text and contemporary
understanding of the Elections Clause: namely, that it does not
confer upon Congress power to regulate state elections, much
less to regulate campaign financing in state elections. In Ex
29
parte Siebold, 100 U.S. 371 (1879), the Court considered the
constitutionality of provisions of the Enforcement Act barring
fraud by, or interference with, election officers in House
elections. The Court noted that, while States often hold their
elections at the same time as federal elections, Congress does
not thereby acquire the power to regulate state elections in such
cases; rather, Congress merely retains its power to regulate
federal elections. See id. at 393; Ex parte Yarborough, 110
U.S. 651, 662 (1884). Indeed, the Court specifically added the
disclaimer that, if election officers were to take actions that
“ha[d] exclusive reference to the election of State or county
officers,” Congress would lack any authority to regulate those
actions. See Siebold, 100 U.S. at 393. Likewise, in United
States v. Reese, 92 U.S. 214 (1875), the Court held that the only
possible source of congressional authority for Enforcement Act
provisions regulating state elections was the Fifteenth
Amendment, not the Elections Clause. See id. at 217-18.
Finally, in Blitz v. United States, 153 U.S. 308 (1894), the Court
ordered dismissal of an Enforcement Act indictment that failed
to specify that the defendant impersonated another voter in
voting for a federal candidate. The Court reasoned that
“[v]oting, in the name of another, for a state officer, cannot
possibly affect the integrity of an election for representative in
congress,” and added that “with frauds of that character the
national government has no concern.” Id. at 314-15; see also
Ex parte Clarke, 100 U.S. 399, 404 (1879) (upholding
punishment of election official for violation “in reference to an
election of a representative to Congress”).
More recent cases reaffirm the foundational principle that the
Elections Clause gives Congress no power over state elections.
Most notably, in Oregon v. Mitchell, the Court considered the
scope of the Elections Clause in determining whether Congress
had the power to give 18-year-olds the right to vote in state, as
well as federal, elections. In his controlling opinion concluding
that Congress lacked that power, Justice Black emphasized that
30
“the Framers of the Constitution intended the States to keep for
themselves, as provided in the Tenth Amendment, the power to
regulate elections.” 400 U.S. at 124-25 (footnote omitted).
Justice Black added that “[n]o function is more essential to the
separate and independent existence of the States and their
governments than the power to determine within the limits of
the Constitution the qualifications of their own voters for state,
county, and municipal offices and the nature of their own
machinery for filling local public offices.” Id. at 125. Finally,
Justice Black noted that the States’ power to regulate state
elections is limited only by those constitutional amendments
that operate directly on the States (such as the Civil War
Amendments), “each of which has assumed that the States had
general supervisory power over state elections.” Id. at 125-26.
In a similar vein, other cases reaffirm the broad power of
States to regulate their own elections. See, e.g., Tashjian v.
Republican Party of Conn., 479 U.S. 208, 217 (1986);
Sugarman v. Dougall, 413 U.S. 634, 647 (1973); Pope v.
Williams, 193 U.S. 621, 632 (1904). Even those Justices who
have consistently dissented in the Court’s recent federalism
cases have agreed that “[a] State’s power to determine how its
officials are to be elected is a quintessential attribute of
sovereignty.” California Democratic Party, 530 U.S. at 590
(Stevens, J., joined by Ginsburg, J., dissenting).6
2. Section 101 of BCRA impermissibly infringes on the
ability of States to regulate state elections in four ways.
a. Section 101 severely limits the involvement of national
party committees in state and local elections. Those
committees are prohibited outright from receiving or spending
any state-regulated funds — even if they are to be used solely
6
Indeed, the FEC itself conceded, at least prior to this litigation, that “[t]he
Constitution grants each state the right to * * * establish its own rules for
financing the nonfederal elections held within its borders.” Federal Election
Commission, Twenty Year Report 19 (1995).
31
for state and local elections, and even if no federal elections are
on the ballot (as in the States that hold “off-year” elections).
See BCRA § 101(a) (adding new FECA § 323(a)(1)).
“National” party committees are known as such for good
reason: their responsibilities extend beyond federal elections to
state and even local elections as well. National party
committees have given substantial amounts of state-regulated
funds to, or spent state-regulated funds on behalf of, state and
local candidates: for example, in the last two off-year election
cycles, the RNC gave over $9.5 million to state and local
candidates, and directly spent over $1 million on such
candidates’ behalf. See Supp. App. 1101sa n.31, 1214sa
(Leon). National committees have also spent funds on
grassroots activities in connection with state and local elections.
See, e.g., id. at 536sa-537sa (Kollar-Kotelly). And in addition
to spending money directly on state and local elections, national
committees have transferred state-regulated funds to state and
local committees for use in those elections. Those transfers
have constituted a sizable portion of the budgets of state and
local committees in recent years. See, e.g., id. at 520sa (KollarKotelly). A substantial amount of that money was used solely
for the purpose of influencing state and local elections: in the
last two off-year election cycles, the RNC transferred over $10
million to state committees for use in those elections. See id. at
1101sa n.31, 1214sa (Leon).
Section 101 bans all of those activities, and indeed imposes
additional restrictions on national committees. Section 101
prohibits national committees from soliciting state-regulated
funds (or Levin federally regulated funds) for state and local
committees. See BCRA § 101(a) (adding new FECA
§§ 323(a)(1), 323(b)(2)(C)(i)). It bans national committees
from transferring any funds to state and local committees to use
for Levin activities, which include many activities that affect
only state elections. See BCRA § 101(a) (adding new FECA
§ 323(b)(2)(B)(iv)). And it prohibits national committees, like
32
state and local ones, from soliciting funds for, or donating funds
to, certain tax-exempt organizations and political committees,
even if those funds are to be used for state and local elections.
See BCRA § 101(a) (adding new FECA § 323(d)).
In sum, section 101 leaves national party committees in the
unique and ironic position of being able to use only federally
regulated funds for any activity affecting state and local
elections. It thereby displaces the prior regulatory regime,
which more adequately accommodated the competing state
regulatory interest by allowing national committees to use a
combination of federally regulated and state-regulated funds for
activities affecting both federal and state elections, and only
state-regulated funds for activities affecting state elections.
b. Section 101 has similarly draconian effects on the
activities of state and local party committees. Those
committees are banned from spending state-regulated funds for
“federal election activity.” See BCRA § 101(a) (adding new
FECA § 323(b)(1)); BCRA § 101(b) (adding new FECA
§ 301(20)-(24)). State and local committees must now pay for
these activities solely out of ordinary federally regulated funds
— or, to the extent that these activities qualify as Levin
activities, out of a combination of ordinary federally regulated
funds and Levin federally regulated funds. See BCRA § 101(a)
(adding new FECA § 323(b)(2)(A)).
BCRA purports to regulate spending by state and local
committees only when they engage in what the statute
deceptively calls “federal election activity.” This is mere
wordplay. The fact that campaign activity occurs when a
federal election is on the ballot does not remotely render the
activity itself “federal.” In most States, state and federal
elections are held simultaneously. As to those States, many
activities are defined as “federal election activity” even if they
have effects on both federal and state elections (such as voter
registration and voter identification); if they have no practical
effect on federal elections at all (such as certain get-out-the-vote
33
activity or party-promoting campaign activity); or if they are
directed only toward state and local elections (such as any
covered activity in a district in which the federal elections on
the ballot are either actually or practically uncontested).7
By requiring state and local committees to pay for all of these
activities exclusively with federally regulated funds,8 section
101 effectively overrides the more generous laws of States, such
as Missouri, that allow donations for such activities from
corporations and unions (unlike federal law); States, such as
Pennsylvania, that allow larger donations than federal law, or
indeed in unlimited amounts; or States, such as Virginia, that
allow both. See, e.g., Supp. App. 424sa (Henderson). As a
result, state and local committees will no longer be able to avail
themselves of millions of dollars raised in full compliance with
applicable state law. The California Democratic Party, for
example, has historically received more than three-quarters of
its donations of state-regulated funds from large donors, see id.
at 1241sa (Leon) — donations that could not constitute ordinary
or Levin federally regulated funds, and thus could no longer be
put toward “federal election activity,” if BCRA is upheld.
In sum, section 101 requires state and local party committees
to use only federally regulated funds for many activities
affecting state and local elections. It thus fails properly to
accommodate the States’ interest in regulating the involvement
of state and local committees in their own elections.
7
In the 2002 elections in California, for example, there were no elections for
the Presidency or the Senate, and only one of the 53 elections for the House
of Representatives was closely contested. See Supp. App. 311sa
(Henderson), 1228sa, 1229sa (Leon); see generally id. at 1106sa n.34 (Leon)
(noting “practical reality that congressional races in many states are either
noncompetitive[] or uncontested”).
8
Section 101(b) of BCRA (adding new FECA § 301(20)(B)) does allow
state and local committees to use state-regulated funds for a few narrow
categories of activities that affect state elections, including paying for
bumper stickers and yard signs that identify only a state or local candidate.
34
c. In addition to political parties, section 101 imposes limits
on the activities of federal officeholders and candidates in
connection with state and local elections. Those individuals are
banned from soliciting or directing state-regulated funds in
connection with any state or local election unless those funds
satisfy the source-and-amount requirements of federal law. See
BCRA § 101(a) (adding new FECA § 323(e)(1)(B)). Further,
they are banned from soliciting or directing Levin federally
regulated funds for Levin activity, even if it affects state
elections. See id. (adding new FECA §§ 323(b)(2)(C)(i),
323(e)(1)(A)). Although federal officeholders and candidates
may speak at or attend fundraising events for state and local
committees, see id. (adding new FECA § 323(e)(3)), they are
otherwise greatly restricted in participating in fundraising
programs for state and local committees and candidates.
The effects of this federal intrusion will be severe. State and
local committees rely heavily on the participation of federal
officials in their parties’ integrated fundraising programs. See,
e.g., Supp. App. 1222sa-1223sa (Leon). For instance, federal
officeholders and candidates will be prohibited from writing or
calling donors to ask them to make donations otherwise
permitted by state law to state and local committees and
candidates, as Senator McConnell has frequently done in the
past in his capacity as de facto leader of the Kentucky
Republican Party. See, e.g., 2 PCS/McC 1-4 (McConnell);
MMc 0095. The involvement of federal officeholders and
candidates in state and local elections, like that of national party
committees, will therefore be greatly curtailed.9
9
Judge Henderson did address appellants’ federalism claim as to the
restrictions on federal officeholders and candidates, concluding that
Congress does have the power to regulate the solicitation and transfer of
non-federal funds “where a federal candidate is the one soliciting.” Supp.
App. 452sa n.174. The Elections Clause, however, gives Congress only the
power to regulate federal elections — not plenary power to regulate the
activities of federal officeholders or candidates even in exclusive connection
with state and local elections.
35
d. Finally, section 101 intrudes even into the activities of
state and local candidates. Those candidates are banned from
spending state-regulated funds on any advocacy which “refers
to” a clearly identified candidate for federal office and which
“promotes,” “supports,” “attacks,” or “opposes” a candidate for
that office, regardless of how that advocacy is transmitted or
when it occurs. See BCRA § 101(a) (adding new FECA
§ 323(f)(1)). For example, if a Democratic candidate for the
California Legislature were to spend funds lawfully raised
under state law on a print ad criticizing his opponent for
supporting tax cuts, and linking his opponent’s support of tax
cuts to President Bush’s, the state candidate could thereby
violate BCRA — notwithstanding the fact that such an ad
would primarily, perhaps exclusively, affect a state election.
This is tantamount to an outright ban on such advocacy, since
there is no such thing as “federally regulated funds” for state
and local candidates. This restriction, like the other restrictions
in section 101, fails properly to accommodate the competing
state interest in regulating state and local elections, and should
therefore be held invalid.
C.
By Discriminating Against Political Parties, The
“Soft Money” Provision Violates The First And
Fifth Amendments.
Section 101 also fails constitutional muster because it limits
speech by political parties but not identical speech by other
entities. As this Court has observed, “[i]n the realm of
protected speech, the legislature is constitutionally disqualified
from dictating the subjects about which persons may speak and
the speakers who may address a public issue.” First Nat’l Bank
of Boston v. Bellotti, 435 U.S. 765, 784-85 (1978) (emphasis
added; citation omitted). This requirement of neutrality among
speakers is drawn not only from the equal protection component
of the Fifth Amendment, but from the First Amendment itself.
See, e.g., Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 96
(1972). Discrimination among speakers is a species of
36
impermissible underinclusiveness, insofar as the government is
prohibiting regulable speech by some speakers but not others.
See, e.g., Republican Party of Minn. v. White, 536 U.S. 765,
780 (2002); City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994);
Carey v. Brown, 447 U.S. 455, 461-62 (1980).
Consonant with this fundamental principle, the Court, in its
two most recent cases involving campaign finance and political
parties, reaffirmed that nothing relating to the government’s
interest in preventing corruption justifies subjecting political
parties to worse treatment than other entities. In Colorado I, in
concluding that political parties (like other entities) could not be
restricted in making independent expenditures, the plurality
expressly rejected the argument that there are “any special
dangers of corruption associated with political parties that tip
the constitutional balance in a different direction.” 518 U.S. at
616. And in Colorado II, in concluding that political parties
(like other entities) could be restricted in making coordinated
expenditures, the Court reiterated that there is “no reason to see
[political party] expenditures as more likely to serve or be seen
as instruments of corruption than * * * expenditures by anyone
else.” 533 U.S. at 444.
It is indisputable that section 101 will place political party
committees at a severe disadvantage compared to interest
groups. Whereas national party committees are barred outright
from raising state-regulated funds — or spending them on
contributions to state or local candidates, voter registration,
voter identification, get-out-the-vote efforts, party-promoting
campaign activity, or even administrative expenses — interest
groups will be able to continue to raise and spend non-federally
regulated funds for all of these purposes. Moreover, whereas
national party committees are barred outright from spending
state-regulated funds on so-called “issue advocacy” (regardless
of whether it refers to a federal candidate, or how and when it is
disseminated), interest groups will continue to be able to raise
and spend non-federally regulated funds for such advocacy,
37
subject to the restrictions contained in the “electioneering
communications” provisions of BCRA, and unincorporated
organizations (and qualified non-profit corporations, under the
so-called “MCFL” exception) will be able to raise and spend
non-federally regulated funds for such advocacy without
restriction.10 Similar disabilities will attach to state and local
committees, which are barred from using state-regulated funds
for many of the same purposes as national committees.
In the recently completed 2002 election cycle, the major
parties collectively raised almost $500 million in state-regulated
funds. See Supp. App. 489sa (Kollar-Kotelly). Unsurprisingly,
interest groups have already been gearing up to fill the void and
secure those funds themselves for use in many of the same
activities previously funded by the political parties. See, e.g.,
10
In his controlling opinion below, Judge Leon seemingly recognized the
equal protection problem, and attempted to cure it by rewriting the statute so
as to impose similar restrictions on party committees under the “soft money”
provisions as on interest groups under the “electioneering communications”
provisions. Compare Supp. App. 1084sa-1142sa (rewriting section 101 to
bar disbursements of state-regulated funds by party committees for a “public
communication that refers to a clearly identified candidate for Federal office
* * * and that promotes or supports a candidate for that office, or attacks or
opposes a candidate for that office”) with id. at 1159sa-1166sa (rewriting
section 201 to bar disbursements of funds by corporations and unions for
“any broadcast, cable, or satellite communication which promotes or
supports a candidate for [federal] office, or attacks or opposes a candidate
for that office”). Even under Judge Leon’s procrustean version of BCRA,
however, political party committees would still be at a disadvantage relative
to unincorporated organizations and qualified non-profit corporations.
Conversely, if this Court holds the “electioneering communications”
provisions of BCRA entirely unconstitutional, thereby allowing all interest
groups to engage in such communications without restriction, the inequities
between party committees and interest groups in their use of non-federally
regulated funds will only grow. Indeed, if this Court strikes down the
“electioneering communications” provisions, it should strike down the “soft
money” provision as well, since Congress would likely not have enacted the
latter provision in the former provisions’ absence. See, e.g., Alaska Airlines,
Inc. v. Brock, 480 U.S. 678, 685 (1987).
38
id. at 415sa-416sa (Henderson). Indeed, interest groups have
freely acknowledged that they expect their donations to increase
as a result of section 101. See, e.g., id. at 324sa (Henderson).
By effectively diverting funds from the political parties to
interest groups, section 101 will empower narrowly focused
interest groups at the expense of the political parties, and
thereby detract from the central and unifying role that parties
have played in our political process from the earliest days of the
Republic. “The preservation and health of our political
institutions, state and federal, depends to no small extent on the
continued vitality of our two-party system, which permits both
stability and measured change.” Davis v. Bandemer, 478 U.S.
109, 145 (1986) (O’Connor, J., concurring); see also Colorado
I, 518 U.S. at 618 (plurality opinion) (noting “important and
legitimate role” political parties have played in American
political process). By impermissibly disadvantaging political
parties, section 101 violates fundamental principles of free
speech and equal protection.
II.
THE “ELECTIONEERING COMMUNICATIONS”
PROVISIONS OF BCRA ARE UNCONSTITUTIONAL.
Sections 201, 203, 204, and 311 of BCRA impose draconian
restrictions on the most vital speech in our representative
democracy: speech about public issues and public officials. In a
nation that so highly values and so passionately protects
political discourse, it is difficult to conceive of a more
constitutionally threatening sort of legislative intrusion than one
that so stifles debate at the very core of the First Amendment.
The district court correctly struck down the core of these
provisions, letting stand a truncated and plainly unconstitutional
scrap of an already unconstitutional congressional offering.
This Court should finish the job and strike the “electioneering
communications” provisions in their entirety.
39
A.
Under Buckley and MCFL, The Government May
Regulate Only Speech That Constitutes “Express
Advocacy.”
1. We begin with first principles. Speech about politics,
issues, and elections is entitled to the most solicitous protection
of the First Amendment. Just last year, this Court observed:
[T]he notion that the special context of electioneering
justifies an abridgment of the right to speak out on
disputed issues sets our First Amendment jurisprudence
on its head. [D]ebate on the qualifications of candidates
is at the core of our electoral process and of the First
Amendment freedoms, not at the edges.
White, 536 U.S. at 781 (internal quotation omitted). But
abridging the right to speak out on issues and candidates is
precisely what BCRA’s “electioneering communications”
provisions do, and that is precisely why they cannot withstand
scrutiny under the First Amendment.
2. There can be no doubt that BCRA’s “electioneering
communications” provisions are subject to strict scrutiny.
Defendants have conceded this, and the Court’s precedents
leave no room for debate on the subject. See, e.g., id.;
Colorado II, 533 U.S. at 440. It is also indisputable that the
“electioneering communications” provisions seek to prohibit
core political speech on the basis of its content. As such, they
come to the Court bearing a presumption of unconstitutionality.
See United States v. Playboy Entm’t Group, Inc., 529 U.S. 803,
818 (2000) (“It is rare that a regulation restricting speech
because of its content will ever be permissible. Indeed, were
we to give the Government the benefit of the doubt when it
attempted to restrict speech, we would risk leaving regulations
in place that sought to shape our unique personalities or to
silence dissenting ideas. When First Amendment compliance is
the point to be proved, the risk of nonpersuasion — operative in
all trials — must rest with the Government, not with the
40
citizen.”).
3. The Court’s prior decisions in Buckley and FEC v.
Massachusetts Citizens for Life, 479 U.S. 238 (1986) (MCFL),
make clear that the government may constitutionally regulate
only independent expenditures for speech expressly advocating
the election or defeat of a candidate, known as “express
advocacy.” The rule that a statute regulating expenditures for
speech beyond express advocacy is unconstitutionally
overbroad is well-established, and defendants’ attempts to
recharacterize the cases supporting that rule are unpersuasive.
a. In Buckley, the Court considered a provision of FECA
that imposed a $1,000 limit on expenditures by any person
“relative to a clearly identified candidate,” and an attendant
provision requiring disclosures of certain expenditures made
“for the purpose of * * * influencing” federal elections. In both
instances, the Court narrowed the provisions at issue to reach
only expenditures made for “communications that in express
terms advocate the election or defeat of a clearly identified
candidate for federal office”: that is, “communications
containing express words of advocacy of election or defeat,
such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’
‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.’”
Buckley, 424 U.S. at 44 & n.52, 80. The Court explained that it
was narrowing these provisions both to cure vagueness in the
statutory language and to eliminate constitutional overbreadth.
See, e.g., id. at 80 (giving “expenditure” in disclosure provision
same construction as “expenditure” in spending-limit provision,
and construing it to reach only expenditures for express
advocacy “[t]o insure that the reach of [the disclosure
provision] is not impermissibly broad”).
Notably, the Buckley Court drew the constitutional line at
express advocacy even though it explicitly recognized the very
“problem” that BCRA purports to address — namely, that it
would sometimes be difficult to distinguish between speech
advocating the election or defeat of candidates and other speech
41
about issues and candidates:
[T]he distinction between discussion of issues and
candidates and advocacy of election or defeat of
candidates may often dissolve in practical application.
Candidates, especially incumbents, are intimately tied to
public issues involving legislative proposals and
governmental actions.
Not only do candidates
campaign on the basis of their positions on various
public issues, but campaigns themselves generate issues
of public interest.
Id. at 42 (emphasis added). The Court added that “[i]t would
naively underestimate the ingenuity and resourcefulness of
persons and groups desiring to buy influence to believe that
they would have much difficulty devising expenditures that
skirted the restriction on express advocacy of election or defeat
but nevertheless benefited the candidate’s campaign.” Id. at 45.
The Court nonetheless concluded that, “[s]o long as persons and
groups eschew expenditures that in express terms advocate the
election or defeat of a clearly identified candidate, they are free
to spend as much as they want to promote the candidate and his
views.” Id. The Court therefore recognized that, while the
difficulty in drawing a clear line between express advocacy and
other speech about issues and candidates was real, the danger of
restricting core political speech by adopting a more expansive
definition was more perilous.11
b. In MCFL, this Court considered a provision of FECA
banning expenditures by corporations “in connection with”
federal elections — the same provision that BCRA now amends
to prohibit disbursements for “electioneering communications.”
11
The Court ultimately struck down the FECA provision limiting
expenditures on the ground that, even as narrowed, it failed to serve the
governmental interest in preventing actual or apparent corruption, see
Buckley, 424 U.S. at 47-48, 51, but upheld the provision requiring
disclosures of expenditures, see id. at 81-82.
42
As with the provisions at issue in Buckley, the Court narrowed
this provision to cover only expenditures for express advocacy.
See 479 U.S. at 248-49. Critically, the Court did not narrow the
provision on the ground that it was necessary to cure vagueness
in the statutory language, but instead relied solely on the
doctrine of constitutional overbreadth. See id. at 248. The
Court reasoned that “Buckley adopted the ‘express advocacy’
requirement to distinguish discussion of issues and candidates
from more pointed exhortations to vote for particular persons.”
Id. at 249 (emphasis added). The Court therefore accepted the
corporation’s argument that “the definition of an expenditure
* * * necessarily incorporates the requirement that a
communication ‘expressly advocate’ the election of
candidates,” id. at 248, though it proceeded to reject the further
argument that the particular communication at issue did not
constitute express advocacy, see id. at 249-50. The Court
ultimately held that independent expenditures by qualified nonprofit corporations (or so-called “MCFL” corporations), like
independent expenditures by individuals, political parties, and
political action committees, could not constitutionally be
regulated. See id. at 263-65.
c. Congress also understood that Buckley’s expressadvocacy test was constitutionally compelled. In revising
FECA in the immediate aftermath of the Court’s decision in
Buckley, Congress amended the expenditure-disclosure
provision at issue in Buckley to reach only express advocacy. In
doing so, the Conference Committee Report observed that the
amendment was necessary “to conform the independent
expenditure reporting requirement * * * to the requirements of
the Constitution set forth in Buckley v. Valeo with respect to the
express advocacy of election or defeat of clearly identified
candidates.” H.R. Conf. Rep. No. 94-1507, at 40 (1976),
reprinted in 1976 U.S.C.C.A.N. 946, 955 (emphasis added).
d. In the nearly three decades since this Court’s decision in
Buckley, courts and commentators alike have consistently
43
concluded that Buckley, and then MCFL, drew a
constitutionally mandated line between speech that expressly
advocates the election or defeat of a candidate and speech that
does not. In a number of post-Buckley opinions rejecting the
FEC’s persistent efforts to expand the definition of express
advocacy articulated by this Court, and therefore to do by
regulation what BCRA now attempts to do by statute, the lower
courts have consistently concluded that only express advocacy
can constitutionally be regulated. See, e.g., Clifton v. FEC, 114
F.3d 1309, 1312 (1st Cir. 1997) (noting that, “[i]n [MCFL], the
Supreme Court not only narrowed section 441b by construction
but also recognized a First Amendment right to issue
advocacy”); FEC v. Christian Action Network, Inc., 110 F.3d
1049, 1064 (4th Cir. 1997) (observing that this Court has held
that “express words of advocacy * * * are the constitutional
minima”) (internal quotation omitted); Faucher v. FEC, 928
F.2d 468, 472 (1st Cir. 1991) (concluding that Buckley and
MCFL ensured “the right to engage in issue-oriented political
speech” by “limiting the scope of the FECA to express
advocacy”).12 Even the Ninth Circuit, the sole court of appeals
to sanction the FEC’s efforts to broaden the express-advocacy
standard, has agreed that the line between regulable express
advocacy and non-regulable political speech is a
constitutionally mandated one. See California Pro-Life
Council, Inc. v. Getman, 328 F.3d 1088, 1097 (9th Cir. 2003),
FEC v. Furgatch, 807 F.2d 857, 860 (9th Cir. 1987).
Similarly, the lower courts have invalidated a variety of state
campaign finance laws, some containing starkly unambiguous
statutory language, on the ground that they may not
constitutionally restrict speech beyond express advocacy. See,
e.g., Chamber of Commerce v. Moore, 288 F.3d 187, 193 (5th
Cir.) (agreeing with other circuits that, “under Buckley and
12
Lower-court cases supporting the proposition that the express-advocacy
line is constitutionally compelled are too numerous to list here. See Supp.
App. 354sa n.145 (Henderson) (listing a selection of cases).
44
MCFL, the government may regulate only those
communications containing explicit words advocating the
election or defeat of a particular candidate”), cert. denied, 123
S. Ct. 536 (2002); Citizens for Responsible Gov’t State Political
Action Comm. v. Davidson, 236 F.3d 1174, 1187 (10th Cir.
2000) (asserting that, in MCFL, “the Court clarified that express
words of advocacy were not simply a helpful way to identify
‘express advocacy,’ but that the inclusion of such words was
constitutionally required”); Vermont Right to Life Comm., Inc.
v. Sorrell, 221 F.3d 376, 387 (2d Cir. 2000) (noting that state
statute that explicitly extended disclosure requirement to
expenditures for speech other than express advocacy is “a
violation of the rule enunciated in Buckley and its progeny”).
These repeated conclusions of lower courts cannot be wished
away as mere “dicta,” as Judge Kollar-Kotelly attempted to do,
see, e.g., Supp. App. 794sa, 797sa, 798sa, 799sa, but instead
reflect the settled understanding, as one commentator has put it,
that “the Buckley bottom line” is that “[e]xpenditures for speech
that does not expressly advocate the election or defeat of a
candidate — i.e., expenditures for issue advocacy — may
neither be limited in amount nor subjected to disclosure
requirements,” Lillian R. BeVier, The Issue of Issue Advocacy:
An Economic, Political, and Constitutional Analysis, 85 Va. L.
Rev. 1761, 1769 (1999).
In and of itself, the Buckley “bottom line” dooms BCRA’s
“electioneering communications” provisions. The primary
definition of “electioneering communications” in section 201,
which covers advertising that merely “refers” to a clearly
identified candidate for federal office, sweeps well beyond
express advocacy, as it fails to require that the advertising
contain “express words of advocacy of election or defeat.”
Buckley, 424 U.S. at 44 & n.52. The statute’s fallback
provision fares no better. That provision encompasses any
communication that “promotes or supports a candidate for that
office, or attacks or opposes a candidate for that office
45
(regardless of whether the communication expressly advocates
a vote for or against a candidate) and which also is suggestive
of no plausible meaning other than an exhortation to vote for or
against a specific candidate” (emphasis added). By its very
terms, the fallback provision is at odds with Buckley and
MCFL, thus requiring that it be stricken as well.13
B.
The Holdings In Buckley And MCFL Apply Equally
To Corporations And Unions.
In addition to contending that Buckley and MCFL did not
draw a constitutional distinction between express advocacy and
all other speech about issues and candidates, defendants have
urged in the alternative that such a distinction does not apply to
corporations and unions. The argument is unavailing.
1. Contrary to the government’s suggestion, see Fed. Defts.
J.S. 4 n.2, the past century of American history is not replete
with examples of Congress passing constitutionally sound
restrictions on the election-related speech of corporations and
unions. To the contrary, the federal campaign finance laws did
not even purport to reach expenditures until 1947, with the
enactment of the Taft-Hartley amendments to the Federal
Corrupt Practices Act. See United States v. CIO, 335 U.S. 106,
107 (1948). This Court did not address the constitutionality of
federal expenditure limitations until its decision in Buckley
almost three decades later. In three decisions prior to Buckley,
the Court expressly declined to reach questions regarding the
constitutionality of Taft-Hartley’s expenditure restrictions. See
Pipefitters v. United States, 407 U.S. 385, 400 (1972) (finding
“decision of the constitutional issues premature” in light of
dismissal of petitioners’ convictions); United States v.
Automobile Workers, 352 U.S. 567, 591-92 (1957) (refusing to
“anticipate constitutional questions” because of decision to
remand case for prosecution); CIO, 335 U.S. at 110, 124
13
The same is true for the modified fallback definition that the district court
upheld as constitutional. See Supp. App. 1159sa-1166sa (Leon).
46
(dismissing indictment as beyond scope of statute and therefore
“express[ing] no opinion * * * upon [statute’s] constitutionality”).14 When the Court finally did consider the constitutionality
of congressional expenditure restrictions, it struck them down
on First Amendment grounds. See Buckley, 424 U.S. at 43-50.15
In fact, every time this Court has addressed the constitutionality
of a federal restriction on independent expenditures, it has
either struck the challenged provision down, see NCPAC, 470
U.S. at 490-501; Buckley, 424 U.S. at 43-50, or significantly
limited its scope through a narrowing construction, see MCFL,
479 U.S. at 248-49, 256-65. History therefore offers little
support for BCRA’s ban on “electioneering communications.”
2. In Buckley and MCFL themselves, the Court insisted that
only expenditures for express advocacy could be subject to
regulation, without treating expenditures by corporations and
unions differently. In Buckley, the expenditure provision at
issue applied to individuals, groups, and corporations alike. See
424 U.S. at 23, 40 n.45 (quoting the statutory definition of
14
Aside from avoiding the constitutional questions raised by the federal
restriction on campaign expenditures, these cases also revealed, through an
exhaustive recitation of the legislative history, that the members of Congress
who passed Taft-Hartley were not sure whether its expenditure limitation
applied in a variety of circumstances, and had concerns about whether the
Constitution would permit particular hypothetical applications of the law —
such as to the corporate or union funding of radio broadcasts during a
campaign that mentioned federal candidates. See, e.g., Automobile Workers,
352 U.S. at 586-87 & n.1; CIO, 335 U.S. at 112. The historical ambiguity as
to the scope of pre-FECA federal expenditure restrictions, considered
together with the express-advocacy limitation articulated in Buckley and
MCFL, makes plain that the Court has never endorsed the type of regulations
contemplated by BCRA’s ban on “electioneering communications.”
15
It is noteworthy that, in striking down FECA’s expenditure restrictions, the
Buckley Court cited the dissent of Justice Douglas in Automobile Workers, in
which Justice Douglas excoriated the majority for failing to strike down the
Taft-Hartley expenditure restrictions on First Amendment grounds. See
Buckley, 424 U.S. at 43 (citing Automobile Workers, 352 U.S. at 595-96
(Douglas, J., dissenting)).
47
“persons”). Indeed, two of the plaintiffs in Buckley were
corporations, including the New York Civil Liberties Union.
See id. at 8. The Court struck down the provision in its entirety,
drawing no distinction between the individual and corporate
plaintiffs.
In MCFL, the Court drew the same constitutional line in the
specific context of speech by a corporation. See 479 U.S. at
241. The Court construed 2 U.S.C. § 441b, the provision of
FECA banning all expenditures by corporations and unions “in
connection with” federal elections, to reach only express
advocacy. See 479 U.S. at 247-49. The Court did not limit its
statutory construction to expenditures by qualified non-profit
corporations, but instead held categorically, with respect to all
corporations, that “an expenditure must constitute ‘express
advocacy’ in order to be subject to the prohibition of § 441b.”
Id. at 249. In fact, it was only after the Court proffered its
narrowing construction of section 441b, and concluded that the
speech at issue was express advocacy, that the Court even drew
a distinction between qualified non-profit corporations and
other corporations, in resolving the ultimate issue of whether
expenditures for express advocacy by the defendant non-profit
corporation could be regulated. See id. at 256-65.
3. Just two years after Buckley, the Court made clear yet
again that corporations may not be restricted from making
expenditures for political advocacy. In Bellotti, the Court held
unconstitutional a Massachusetts statute that banned corporate
expenditures in connection with referenda unless they
“materially affect[ed] any of the property, business or assets of
the corporation.” 435 U.S. at 767-68. Such speech, the Court
concluded, was “at the heart of the First Amendment’s
protection” and “indispensable to decision making in a
democracy,” adding that “this is no less true because the speech
comes from a corporation rather than an individual.” Id. at 77677; see also Pacific Gas & Elec. Co. v. Public Utils. Comm’n,
475 U.S. 1, 8 (1986) (noting that “[t]he identity of the speaker
48
is not decisive in determining whether speech is protected” and
adding that “[c]orporations and other associations, like
individuals, contribute to the discussion, debate, and the
dissemination of information and ideas that the First
Amendment seeks to foster”) (internal quotation omitted).
Similarly, in the recent case of Nike, Inc. v. Kasky, 539 U.S. ___
(2003), while there was disagreement as to whether the petition
for writ of certiorari should have been dismissed as
improvidently granted, there was no suggestion that noncommercial corporate speech relating to matters of public
interest was without substantial First Amendment protection.
See id. at ___ (slip op., at 10) (Stevens, J., joined by Ginsburg
and Souter, JJ., concurring) (“Knowledgeable persons should be
free to participate in * * * debate [about important public
issues] without fear of unfair reprisal.”); id. at ___ (slip op., at
12) (Breyer, J., joined by O’Connor, J., dissenting) (“[S]peech
on matters of public concern needs ‘breathing space’ * * * in
order to survive.”).
4. Austin v. Michigan Chamber of Commerce, 494 U.S. 652
(1990), is not, as the government suggests, see Fed. Defts. J.S.
24, to the contrary. In Austin, the Court held that a State could
constitutionally restrict corporate independent expenditures for
express advocacy. Nothing in Austin, however, even remotely
hints that the Court intended to overrule Buckley, MCFL, and
Bellotti so as to allow the government to regulate expenditures
by corporations and unions for speech other than express
advocacy. Austin itself involved a state statute modeled on the
federal provision at issue in MCFL, see id. at 656 n.1, and an ad
that urged voters, in large bold type, to “Elect Richard
Bandstra” — an ad that plainly constituted express advocacy,
see id. at 656; id. at 714 (appendix to opinion of Kennedy, J.,
dissenting). Austin held only that Michigan could regulate the
Michigan Chamber of Commerce’s expenditure for the express
advocacy at issue, since the Chamber was not a qualified nonprofit corporation under MCFL. See id. at 668-69. As Judge
49
Henderson observed, “the Court’s holding in Austin was limited
to corporate expenditures on express advocacy.” Supp. App.
356sa; see also The Supreme Court, 1989 Term, Leading Cases,
104 Harv. L. Rev. 209, 217 (1990) (“[T]he [Austin] Court
preserved for corporations the right to speak on any issue so
long as they do not expressly advocate the election or defeat of
specific candidates.”).
5. In a related vein, defendants have urged that corporations
and unions may be required to engage in “electioneering
communications” through PACs (or “segregated funds”), as
BCRA permits. See Fed. Defts. J.S. 23-24; Intervenor Defts.
J.S. 24-25. Leaving aside the fact that many corporations and
unions may have no desire to establish PACs — a point vividly
illustrated in the brief of the American Civil Liberties Union,
see ACLU Br. 17 — requiring a corporation to speak
exclusively through a PAC substantially burdens its right to
speak, see, e.g., MCFL, 479 U.S. at 252-56; id. at 266
(O’Connor, J., concurring). It is simply no answer to say that
these entities can “speak” by having a PAC speak for them.
PACs provide neither a constitutionally sufficient nor
practically workable alternative to speech by plaintiffs
themselves. If the speech at issue is fully protected by the First
Amendment — and it is nothing less — plaintiffs are permitted
to utter it in their own name, and to pay for it with their own
funds, without fear of governmental interference.
C.
Even If This Court Were To Abandon Buckley And
MCFL, The “Electioneering Communications”
Provisions Could Not Survive Scrutiny.
Given the determinations in Buckley and MCFL, the
“electioneering communications” provisions can be sustained
only if the Court were to overrule those cases. The Court
should decline to do so. The express-advocacy standard is both
narrow and unambiguous, and is narrowly tailored to advance
the compelling governmental interest in preventing actual or
apparent corruption. In contrast, BCRA’s primary definition of
50
“electioneering communications” is vastly overbroad. But even
if this Court were to abandon Buckley and MCFL in favor of
defendants’ proffered standard, the “electioneering communications” provisions are so overbroad that they cannot be sustained
under any theory consistent with the First Amendment.
1. Defendants’ theory is that only speech that is “genuinely”
about “issues” is constitutionally protected, while all other
speech is subject to government regulation. This is, of course,
precisely the opposite of what this Court concluded in Buckley
and reaffirmed in MCFL: that only speech expressly advocating
the election or defeat of a candidate is regulable, while all other
speech about issues and candidates is not. Defendants’ theory
then proceeds to the dubious proposition that “most” speech
that is “genuinely” about “issues” is not broadcast in close
proximity to elections. Therefore, the syllogism marches on, by
banning any reference to a federal candidate in any
communication aired within 30 days of a primary or 60 days of
a general election, BCRA will eliminate disfavored speech
about issues and candidates — pejoratively referred to by
defendants as “sham” issue ads — but not most “genuine”
speech about issues. Defendants’ theory is both legally and
factually indefensible.
A review of actual advertisements aired in the 30- and 60-day
periods before the 1998 and 2000 primary and general elections
powerfully illustrates the sort of protected speech that would be
criminalized by BCRA’s regulation of “electioneering
communications.”16 As would be expected (and as Buckley
predicted, see 424 U.S. at 42), a vast majority of the ads
covered by BCRA refer to incumbent officeholders who are
running for re-election. One such ad, broadcast within 60 days
of the 1998 general election in the district of Oregon
16
The ads discussed in this section are included in an appendix to this brief
(“Br. App.”), as are eight other ads discussed below. Also included with the
brief is a CD-ROM containing 10 ads that were submitted to the district
court and discussed at length in the briefs and at oral argument.
51
Congressman David Wu, urged him as follows:
The people of America should be running our
government. That’s the way it was set up in the first
place. The problem is the special interests and the paid
lobbyists who control the Washington politicians. The
answer is term limits. Term limits replace Washington
insiders with new people who reflect community
interests, not politics as usual. Molly Bordonaro has
signed the pledge to limit her terms in Congress. David
Wu refused. Call David Wu and tell him to sign the US
Term Limits Pledge.
Br. App. 1a. The ad thus informed the viewers that
Congressman Wu had failed to sign a term-limits pledge, and
attempted to pressure him to do so. Though it may seem
unthinkable that such core political speech could be the subject
of criminal sanctions, Americans for Term Limits (the group
that sponsored the ad) would be subject to such sanctions for
airing the same ad today.
Another good example of what is lost under BCRA is an
AFL-CIO ad opposing permanent most-favored-nation status
for China. This ad, which ran, inter alia, in the district of
Representative Ron Paul (a plaintiff in this case) within 30 days
of his primary election, stated in its entirety:
Behind this label is a shameful story of political
prisoners and forced labor camps, of wages as low as 13
cents an hour, of a country that routinely violates trade
rules flooding our markets, draining American jobs.
Now Congress is set to scrap its annual review of
China’s record and reward China with a permanent
trade deal. Tell Congressman Paul to vote “No” and
keep China on probation until this label stands for
fairness. Paid for by the AFL-CIO.
52
Br. App. 2a.17 The AFL-CIO could be indicted in 2004 for
running a similar ad.
Finally, the federal defendants have identified the following
ad, aired in Michigan within 60 days of the 2000 general
election, as an example of a so-called “sham” issue ad:
WOMAN: My mom started this business and my
brother and I worked hard to make it grow. One day we
hope to own it but because of the law, we can never be
sure.
ANNOUNCER: Because of the death tax, people like
Melanie are always at risk of losing family businesses.
Debbie Stabenow voted twice against getting rid of the
death tax.
WOMAN: Everything we have worked for can be taken
away in an instant and that’s not fair.
ANNOUNCER: Call Debbie Stabenow. Tell her our
working families need a break. Paid for by the
Michigan Chamber of Commerce.
Br. App. 3a. Remarkably, far from acknowledging that this ad
is speech fully protected by the First Amendment, defendants
have viewed it as a perfect example of speech that should be
criminalized.
These ads — sometimes using pointed, critical, and
antagonistic speech — all sought to lobby and pressure federal
officeholders on issues of unquestioned importance to the
groups that sponsor them. They are fully protected by Buckley,
to say nothing of the core principle of New York Times Co. v.
Sullivan that “uninhibited, robust, and wide-open speech” is
protected by the First Amendment. 376 U.S. at 270.
17
The storyboard included in the appendix refers to Congresswoman Sue
Myrick. The ad referring to Congressman Paul was materially identical. See
6 PCS/Mitchell decl., exh. 1, at 92.
53
2. To counter these and the many other examples of
BCRA’s overbreadth, defendants relied almost exclusively on
two reports by the Brennan Center for Justice, counsel to the
intervenor defendants in this case, entitled Buying Time 1998:
Television Advertising in the 1998 Congressional Elections
(Jonathan S. Krasno & Daniel E. Seltz, Brennan Center 2000),
and Buying Time 2000: Television Advertisements in the 2000
Federal Elections (Craig B. Holman & Luke P. McLoughlin,
Brennan Center 2001). The reports were cited repeatedly by
Members of Congress during the debates on BCRA. See, e.g.,
147 Cong. Rec. S3045 (daily ed. Mar. 28, 2001) (statement of
Sen. Snowe); 148 Cong. Rec. S2117-18 (daily ed. Mar. 20,
2002) (statement of Sen. Jeffords); 148 Cong. Rec. S2141
(daily ed. Mar. 20, 2002) (statement of Sen. McCain).
The Buying Time reports surveyed ads aired during the 1998
and 2000 election cycles and concluded that the vast majority of
ads that would have been banned by BCRA were “sham” issue
ads, and thus speech that, in the authors’ view, should not be
entitled to First Amendment protection. The reports concluded
that only a tiny fraction of so-called “genuine” issue ads —
speech that defendants admit is entitled to full First Amendment
protection — would have been covered by BCRA’s primary
definition of “electioneering communications.”
Despite defendants’ best efforts, however, the district court,
after detailed and laborious consideration, unanimously rejected
the conclusions of the Buying Time reports, finding that, if
anything, the data demonstrated that BCRA would have
criminalized a substantial amount of concededly protected
speech in 1998 and 2000. Judge Henderson concluded that the
Buying Time reports were “based on a flawed methodology and
[are] therefore unreliable as evidence,” Supp. App. 244sa,18 but
18
As Judge Henderson’s opinion demonstrates, the Buying Time reports
were entirely and irredeemably biased. Funding for the studies was solicited
for the express purpose of furthering campaign finance “reform,” see Supp.
App. 239sa-240sa (Henderson); the academic who solicited the funding
54
that, in any event, “the record as a whole suggests that BCRA
would prohibit too much protected expression — anywhere
from 11.38 per cent to 50.5 per cent of (what even the
defendants characterize as) ‘genuine’ issue ads broadcast during
the 60 days before an election in a typical election year,” id. at
367sa n.149. Judge Leon concluded that “14.7 percent and 17
percent of the ads” that would have been prohibited by BCRA
in 1998 and 2000, respectively, were “genuine” issue ads by the
Brennan Center’s own definition, and that such percentages
represented “substantial overbreadth.” Id. at 1157sa. Even
Judge Kollar-Kotelly, who would have upheld the
“electioneering communications” provisions, refused to accept
either report’s findings about BCRA’s effect on so-called
“genuine” issue ads, although she agreed that, as to the 2000
study, the evidence demonstrated that 17% of the speech that
BCRA would have banned was “genuine” speech about issues.
See id. at 857sa. This is overbreadth by any standard.
The very premise of the Buying Time reports (and indeed,
defendants’ entire argument about BCRA’s “electioneering
communication” provisions) is itself fundamentally flawed. In
insisting that BCRA will have only a modest effect on
“genuine” issue advocacy, defendants and the Buying Time
authors have sought to seize for themselves the role of
determining — in a way wholly inconsistent with Buckley —
what advocacy is “genuine.” They have embraced the notion
agreed that the studies were “design[ed] and execute[d] * * * in a way that
would help move the campaign reform ball forward,” id. at 240sa
(Henderson); data for the studies were acquired in order to “fuel a
continuous and multi-faceted campaign to propel reform forward,” id. at
241sa (Henderson); and the authors agreed with their sponsors that the
studies would be abandoned in midstream, and the results never published,
unless the results were helpful to the reform “cause,” see id. at 239sa
(Henderson). Such conduct was so plainly dishonorable that defendants’
expert Dr. Arthur Lupia was forced to admit that it was not “consistent with
scholarly behavior of honor and seriousness as member of a learned
profession.” Lupia dep. 17.
55
that only speech about a bill or an issue is “genuine” and is
protected by the First Amendment, while speech about
candidates is rarely, if ever, protected. This view, as we have
observed, is flatly at odds both with this Court’s decisions and
with fundamental First Amendment principles.
The core conclusions of the Buying Time reports are derived
solely from surveys filled out by college students, who were
asked to determine whether the “purpose” of an ad was to
“provide information about or urge action on a bill or issue,” or,
alternatively, to “generate support or opposition for a particular
candidate.” See id. at 241sa (Henderson), 1043sa (KollarKotelly), 1329sa (Leon). If students determined that an ad
generated support or opposition for a candidate, the ad was
classified as a “sham” issue ad. If it provided information, the
ad was deemed to be “genuine.” The survey form provided no
way for a student to conclude that an ad’s “purpose” was to do
both. See Holman dep. 43; Seltz dep. 187. Tellingly, when
Professor Kenneth Goldstein, a defense expert and the principal
researcher for the Buying Time reports, was asked if he would
have designed the reports differently had he known that speech
about both issues and candidates was constitutionally protected,
he conceded that he would have. See Supp. App. 247sa
(Henderson).
In any event, it is now clear that the reports’ conclusions
about BCRA’s insignificant effect on so-called “genuine” issue
ads are insupportable. The 1998 report, on which BCRA’s
congressional supporters relied, indicated that only 7% of
“genuine” issue ads aired in 1998 would have been prohibited
by BCRA. See id. at 242sa (Henderson), 857sa (KollarKotelly), 1345sa (Leon). However, using a more accurate
methodology that the Brennan Center itself later adopted,
defendants’ experts and the report’s authors now concede that
the underlying data demonstrates that 14.7% of the ads that
would have been prohibited by BCRA were “genuine.” See id.
at 243sa (Henderson), 1157sa (Leon).
56
A closer look at the documents underlying the 1998 report
demonstrates that BCRA would have prohibited even more socalled “genuine” issue ads. The report claimed that, of the 30
ads that would have been prohibited by BCRA, only two were
coded as “genuine” issue ads. See id. at 242sa (Henderson),
1333sa (Leon). However, a review of the actual handwritten
coding sheets filled out by Professor Goldstein’s students shows
that, in fact, at least 10 ads met BCRA’s criteria and were coded
as “genuine.”
At some point before the 1998 report went to press, someone
re-coded at least eight ads from “genuine” to “sham.” See Br.
App. 7a-15a; Supp. App. at 243sa (Henderson), 765sa-766sa
(Kollar-Kotelly). The impact of this re-coding on the numbers
is telling. If the eight re-coded ads had been counted as
“genuine” issue ads, Buying Time 1998 would have reported
that 64% of ads mentioning a candidate in the 60 days before
the 1998 general election were coded by the students as
“genuine.” See id. at 243sa-244sa (Henderson), 1349sa (Leon).
Employing a different methodology used in the report of
defendants’ expert Dr. Jonathan Krasno, plaintiffs’ expert Dr.
James Gibson concluded that no less (and likely more) than
50.5% of the ads featuring candidates within 60 days of the
1998 election were coded as “genuine.” See id. at 244sa
(Henderson), 1349sa-1350sa (Leon). This is surely overbreadth
at a level rarely seen in any case.
For its part, Buying Time 2000 also drastically underreports
the number of “genuine” issue ads that would have met
BCRA’s criteria. Two of the three judges below, after close
and careful review, concluded that if the data had been correctly
analyzed, 17% of the ads that referred to candidates in the last
60 days of the 2000 campaign were “genuine” issue ads, the
broadcast of which would have been criminal. See id. at 767sa
(Kollar-Kotelly), 1157sa (Leon). Judge Henderson did not
specifically address the 17% figure, finding that “neither study
has any significant evidentiary weight” and that “even if I
57
accepted the distinction [between ‘genuine’ and ‘sham’ issue
ads], the record as a whole suggests that BCRA would prohibit
too much protected expression.” Id. at 367sa n.149.
D.
The “Electioneering Communications” Provisions
Are Overbroad Because They Regulate Speech By
Qualified Non-Profit Corporations.
By its plain terms, section 204 of BCRA extends to all
corporations and unions the ban on disbursements for
“electioneering communications.” BCRA therefore makes no
accommodation for qualified non-profit corporations, or socalled “MCFL” corporations: that is, non-profit, ideological
corporations that accept no more than de minimis funds from
corporate sources. This Court has held that such corporations
must be allowed to make expenditures even for express
advocacy. See MCFL, 479 U.S. at 259, 264.
Judge Henderson would have struck down section 204 in its
entirety. See Supp. App. 370sa. Judge Leon, in his controlling
opinion, held section 204 to be unconstitutional insofar as it
extends to MCFL corporations. See id. at 1166sa-1169sa.
Defendants have conceded that BCRA’s “electioneering
communications” provisions cannot constitutionally be applied
to MCFL corporations. See Fed. Defts. J.S. 24 n.8; Intervenor
Defts. J.S. 14 n.16. In light of defendants’ concessions, the
Court should strike down section 204 as unconstitutionally
overbroad.
E.
The “Electioneering Communications” Provisions
Are Vague And Underinclusive.
Finally, even if the Court accepts all of defendants’ other
arguments, BCRA’s “electioneering communications” provisions are still unconstitutionally vague and underinclusive.
1. The “fallback” definition of “electioneering
communications,” which covers advertising that “promotes,”
“supports,” “attacks,” or “opposes” a federal candidate and is
“suggestive of no plausible meaning other than an exhortation
58
to vote for or against a specific candidate,” is as
unconstitutional as the primary definition. First and foremost,
the definition fails under — and indeed, flouts — Buckley,
because it applies by its terms “regardless of whether the
communication expressly advocates a vote for or against a
candidate.” This statutory provision, enacted notwithstanding
the specific holding of Buckley to the contrary, once again puts
political speakers “wholly at the mercy of the varied
understanding of [their] hearers.” Buckley, 424 U.S. at 43
(internal quotation omitted). Under the fallback definition,
much as the Court warned in Buckley, speakers will be forced to
“hedge and trim” their political speech to ensure that it is not
perceived as promoting or attacking a candidate. Id. (internal
quotation omitted).
Apart from its inconsistency with Buckley, the fallback
definition is unconstitutional because it is so vague that people
“of common intelligence must necessarily guess at its meaning
and differ as to its application.” Connally v. General Constr.
Co., 269 U.S. 385, 391 (1926); accord Reno v. ACLU, 521 U.S.
844, 871-72 (1997). And an “even greater degree of
specificity” is required in the First Amendment context.
Buckley, 424 U.S. at 77 (internal quotation omitted). As Craig
Holman, chief author of Buying Time 2000, acknowledged in
his deposition, any effort to determine the “purpose” of a
political advertisement is by its nature not a “black and white
issue,” but is instead a “subjective judgment” that “can be
reasonably debated.” Holman dep. 73, 80. Indeed, defendants’
own expert Professor Goldstein noted that the students involved
in coding ads for the Buying Time studies disagreed 25% of the
time as to whether a particular ad was intended to “generate
support or opposition for a particular candidate” or not. See
Goldstein dep. 182.
Discovery confirmed that reasonable and intelligent people
often disagree about whether political ads meet the criteria of
the fallback definition. When shown particular ads during their
59
depositions in this case, the Buying Time authors, defendants’
experts, and BCRA’s sponsors routinely disagreed with each
other as to whether a given ad was intended to promote,
support, attack, or oppose a specific candidate. A criminal law
that gives so little guidance as to its meaning cannot be
sustained.
By way of example, an ad that ran within 60 days of the 1998
general election stated in part as follows: “Year after year the
federal government takes a bigger piece of the pie. In fact in
1998 we’ll pay more in federal taxes than at any time in
American history except for World War II. And now with the
budget surplus, in thirty years all the Washington politicians can
talk about is getting their hands on more of your dough.” The
ad then asked viewers to “[c]all Harry Reid and John Ensign”
and urge them to cut taxes. “Otherwise,” the ad concluded,
“there will be nothing left but the crumbs.” Br. App. 4a. Luke
McLoughlin, co-author of Buying Time 2000, opined that this
ad was “genuine” because its “focus is on taxes.” McLoughlin
dep. 23. Senator McCain, however, testified that the ad
“attacks both” candidates.
McCain dep. 122.
And
Congressman Shays offered a third view, testifying that the ad
supported “one person’s position, but not the other” and that it
was therefore “designed to influence the election.” Shays dep.
111.
Another ad, sponsored by the Alliance for Quality Nursing
Home Care broadcast within 60 days of the 2000 general
election, referred to then-presidential candidate Al Gore. See
Br. App. 5a. Senator Feingold was unsure whether the ad was
pro-Gore or anti-Gore. See Feingold dep. 41. On the other
hand, Senator McCain testified that the ad “implies that Al
Gore was responsible for Medicare cuts, which is a pretty
damning indictment.” McCain dep. 139. But Representative
Meehan concluded that that the ad “probably” was intended to
promote Gore’s candidacy, see Meehan dep. 124, and
Representative Shays agreed, see Shays dep. 128.
60
A third example was this ad, aired with 60 days of the 2000
general election:
GRADUATE: Dear high tech company, I’d like to send
you my resume.
ANNOUNCER: Dear Graduate, sorry, Congress is
going to give your job to a foreign worker.
GRADUATE: But I’ve just finished four hard years of
technical studies.
ANNOUNCER 1: Sorry, besides foreign workers will
work for a lot less.
ANNOUNCER 2: Is this any way to treat American
workers? But based on her record, Congresswoman
Northrup is likely to vote in favor of the Foreign
Worker Bill. Call Congresswoman Northrup and tell
her to save our best jobs for American workers. Ask
her to vote no on the Foreign Worker Bill. This
message paid for by the Coalition for the Future
American Worker.
Br. App. 6a. Though the ad was treated in Buying Time 2000 as
a “genuine” issue ad (that is, one that does not “generate
support or opposition for a particular candidate”), see Holman
dep. 77-78, Senator McCain called the ad “exactly what I have
in mind as a sham issue ad,” McCain dep. 141.
With so much disagreement, it is plain that the fallback
definition will inevitably lead candidates to “steer far wider of
the unlawful zone than if the boundaries of the forbidden area
were clearly marked.” Baggett v. Bullitt, 377 U.S. 360, 372
(1964) (internal quotation omitted). In the end, Senator
McCain said it best when he rose on the Senate floor to oppose
the inclusion of materially identical statutory language:
Boy, we better get out the dictionary because there is a
great deal of ambiguity of words. * * * It says in the
amendment: * * * [ads] can have no reasonable
61
meaning other than to advocate the defeat of one or
more clearly identified candidates. Who decides that?
* * * Now you are asking a judge to look at every
commercial, or you are asking the broadcast station to
look at every commercial[,] and make some decision as
to whether it is an attack ad or not. * * * I am not a
lawyer, but I have been involved so long and so engaged
in these issues that words do have meaning, and this
amendment is very vague.
147 Cong. Rec. S3116 (daily ed. Mar. 29, 2001). The
“fallback” definition in section 201 is unacceptably, and
unconstitutionally, vague.19
2. Finally, by regulating only broadcast ads and not print
ads or other forms of communication, both definitions of
19
The modified fallback definition that the district court upheld as
constitutional, see Supp. App. 1159sa-1166sa (Leon), is not only vague, but
also overbroad. As written by Congress, the fallback definition contained no
temporal restrictions. Presumably, Congress determined that the 30- and 60day limits of the primary definition were unnecessary in the fallback
definition, because that definition would apply only to ads that are
“suggestive of no plausible meaning other than an exhortation to vote for or
against a specific candidate.” Shorn of that final clause, however, the
fallback definition upheld by the district court now covers all ads that
“promote, support, attack, or oppose a Federal candidate.”
In its
rulemaking, the FEC itself recognized that virtually any ad that refers to a
federal candidate “could well be understood” to meet those criteria.
Electioneering Communications, 67 Fed. Reg. 65,190, 65,201 (Oct. 7,
2002).
Moreover, by striking the definition’s one narrowing characteristic, the
district court not only concocted a statutory provision that there is no reason
to believe Congress would have enacted, but also did nothing to overcome
the inherent vagueness of the terms “promote,” “support,” “attack,” and
“oppose.” In fact, the language found to be unconstitutionally vague in
Buckley (even after the Court’s narrowing construction) bears a strong
resemblance to the language in the fallback definition. Compare Buckley,
424 U.S. at 42 (“advocating the election or defeat of a candidate”) (internal
quotation omitted), with BCRA § 201(a) (“promot[ing] or support[ing] * * *
or attack[ing] or oppos[ing] a candidate for [federal] office”).
62
“electioneering communications” in section 201 are
underinclusive and violate basic First Amendment principles.
This Court has frequently struck down laws on the ground that
they apply only to certain forms of media and not to others.
See, e.g., Florida Star v. B.J.F., 491 U.S. 524, 540 (1989);
Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 104-05 (1979).
At the time of BCRA’s enactment, members of Congress
sought to justify the restriction on only broadcast ads by
resorting to the “scarcity rationale”: that is, the argument that
activities by broadcasters may be regulated because broadcast
stations operate on a limited spectrum provided by the
government. See, e.g., 144 Cong. Rec. S978 (daily ed. Feb. 25,
1998) (statement of Sen. Levin); 147 Cong. Rec. S2611 (daily
ed. Mar. 21, 2001) (statement of Sen. Torricelli). Even
assuming, however, that the “scarcity rationale” is applicable to
cable and satellite broadcasting (or, for that matter, retains any
vitality at all), that doctrine has never been applied to justify
restrictions on broadcasters that would have the effect of
decreasing speech, rather than increasing it. Indeed, the very
justification for the “scarcity rationale” was to ensure the
dissemination of voices that “would otherwise, by necessity, be
barred from the airwaves.” Red Lion Broad. Co. v. FCC, 395
U.S. 367, 389 (1969).
There is simply no justification for allowing Congress to
regulate an ad only when it is read over the radio, but not when
it is printed in a newspaper. See Supp. App. 365sa
(Henderson). Because the “electioneering communications”
provisions of BCRA discriminate against broadcast ads, they
fail constitutional scrutiny on this ground as well.
III. OTHER PROVISIONS OF BCRA ARE UNCONSTITUTIONAL.
The district court correctly struck down a number of other
provisions of BCRA, and incorrectly upheld others. We
address each in turn.
63
A.
The “Advance Notice” Provisions Are Unconstitutional.
The district court properly struck down one of BCRA’s two
“advance notice” provisions, but erred by holding plaintiffs’
challenges to the other nonjusticiable. Section 201 of BCRA
imposes disclosure requirements on persons who merely enter
into a “contract to make” disbursements for electioneering
communications, even before those disbursements are made,
and even if they are ultimately not made. Section 212 imposes
similar requirements on persons who “contract[] to make”
independent expenditures over a certain amount, again even
before those expenditures are made.
As the district court unanimously held, the “advance notice”
provision of section 201 violates the First Amendment. Section
201 cannot be said to serve any of the governmental interests
recognized in Buckley as potentially supporting disclosure
requirements: namely, preventing actual or apparent corruption,
informing the electorate as to the source of campaign spending,
and assisting in the enforcement of contribution limits. See 424
U.S. at 66-68. As the district court recognized, those interests
would be fully served by requiring disclosures after the
underlying expenditures have actually been made. See Supp.
App. 114sa (Kollar-Kotelly and Leon). Indeed, requiring
advance disclosures could have a chilling effect on would-be
speakers. This Court has held that similar preconditions on
speech are repugnant to First Amendment values. See, e.g.,
Watchtower Bible & Tract Society of N.Y., Inc. v. Village of
Stratton, 536 U.S. 150, 165-66 (2002) (striking down ordinance
requiring permits for canvassers); Thomas v. Collins, 323 U.S.
516, 540 (1945) (invalidating registration requirement for labor
organizers).20
20
In its rulemaking, the FEC itself freely acknowledged that mandating
disclosure of expenditures before the relevant communications are aired
could raise “constitutional issues.” Electioneering Communications, 67 Fed.
Reg. 51,137, 51,141 (Aug. 7, 2002).
64
The district court erred only by concluding that appellants’
challenge to the analogous “advance notice” requirement in
section 212 was unripe in light of the FEC’s implementing
regulation. See Supp. App. 130sa-134sa (Kollar-Kotelly and
Leon). That regulation “construes” section 212 so as not to
require advance disclosure. See Coordinated and Independent
Expenditures, 68 Fed. Reg. 421, 452-53 (Jan. 3, 2003) (to be
codified at 11 C.F.R. § 109.10). As Judge Henderson suggested
in dissent, see Supp. App. 383sa n.154, not only is section 212
not “easily susceptible” to such a saving construction,
Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 (1975), but
the construction advanced in the regulation is flatly contrary to
the language of the statute itself. Section 212 expressly requires
disclosures not just of independent expenditures themselves,
but also of “contracts to make” such expenditures. The Court
should accordingly conclude that appellants’ challenge to the
“advance notice” provision in section 212 is ripe, and that the
provision is invalid for the same reasons as its counterpart in
section 201.
B.
The “Coordination” Provisions Are Unconstitutional.
The district court erred by rejecting appellants’ challenges to
BCRA’s “coordination” provisions. The heart of those
provisions is section 214, which broadens the definition of
“coordination” to treat expenditures made in agreement or
consultation with political party committees, like candidates, as
coordinated, see BCRA § 214(a); repeals prior FEC regulations
defining coordination, see BCRA § 214(b); and commands the
FEC to promulgate new regulations that do “not require
agreement or formal collaboration to establish coordination,”
BCRA § 214(c).
Because those provisions allow an
expenditure to be classified as “coordinated” (and thereby
subject to the limits on contributions) even absent agreement
between the spender and the candidate or party committee, they
65
violate the First Amendment.21
The district court erred by concluding that appellants’
challenge to one subsection, section 214(c), was nonjusticiable.
See Supp. App. 144sa-156sa (Kollar-Kotelly and Leon). Since
appellants’ contention is that agreement is always required
before coordination can constitutionally be found, and since
section 214(c) commands the FEC to promulgate a regulation
that does not require agreement to establish coordination, no
FEC regulation (including, as it turns out, the regulation
subsequently promulgated) could pass constitutional muster.
Appellants’ challenge to section 214(c) is therefore appropriate
for judicial resolution at this time, and appellants would suffer
hardship absent review because of the risk that current activity
could render future expenditures “coordinated.” See Abbott
Labs. v. Gardner, 387 U.S. 136, 149 (1967).22
When considered as an integrated whole, section 214 violates
the First Amendment. Although this Court has upheld the
constitutionality of treating coordinated expenditures as
contributions, see Buckley, 424 U.S. at 47, it has never defined
the constitutional outer bounds of coordination, though it has
suggested that coordination turns on whether expenditures are
“potential alter egos for contributions” or “functionally true
expenditures,” Colorado II, 533 U.S. at 463, and made clear
that coordination means “actual coordination as a matter of
fact,” Colorado I, 518 U.S. at 619 (plurality opinion). In other
words, “simply calling an independent expenditure a
‘coordinated expenditure’ cannot (for constitutional purposes)
make it one.” Id. at 621-22.
21
Section 202 applies the BCRA’s “coordination” provisions to
disbursements for electioneering communications. If this Court strikes down
the “electioneering communications” provisions of BCRA, it should strike
down section 202 as well.
22
Because of this risk, appellants plainly also have standing. See, e.g.,
Bigelow v. Virginia, 421 U.S. 809, 816-17 (1975).
66
Section 214 redefines coordination to sweep well beyond
even implicit “wink and nod” agreements between the spender
and the candidate or political party, see, e.g., Colorado II, 533
U.S. at 442; Colorado I, 518 U.S. at 614 (plurality opinion),
and include even mere discussions with a candidate or political
party. Defining coordination so broadly, however, would chill
political actors from engaging in constitutionally protected
petitioning of officeholders, officials, and candidates. As a
lower court noted in the decision that inspired the FEC
regulations BCRA purports to overrule, “considerable
coordination will convert an expressive expenditure into a
contribution[,] [but] the spender should not be deemed to forfeit
First Amendment protections for her own speech merely by
having engaged in some consultations or coordination with a
federal candidate.” FEC v. Christian Coalition, 52 F. Supp. 2d
45, 91 (D.D.C. 1999) (emphases added).
As Judge Henderson noted in her dissent below, the net
effect of BCRA’s broadening of the definition of coordination
will be to “tote the same impermissible restrictions [from other
parts of BCRA] through the back door.” Supp. App. 385sa.
While the concept of coordination is readily defensible,
BCRA’s broadening of the definition of coordination is not.
BCRA’s “coordination” provisions should be invalidated.
C.
The “Attack Ad” Provision Is Unconstitutional.
Section 305, entitled “Limitation on Availability of Lowest
Unit Charge for Federal Candidates Attacking Opposition,” is
one of BCRA’s most obviously unconstitutional provisions. It
conditions the “lowest unit charge” (a lower advertising rate
made available to candidates) upon a candidate’s “written
certification” that he or she will “not make any direct reference
to another candidate for the same office” in the ad sought to be
aired, or even in a different ad. Candidates can be exempted
from these requirements, but only if they include specific
disclosures in their ads — disclosures that are not required for
ads that do not refer to (and therefore presumably “attack”)
67
opponents.23
The district court held that plaintiffs — including Senator
McConnell — lacked standing to challenge section 305. See
Supp. App. 467sa-472sa (Henderson). However, as the court
acknowledged, Senator McConnell testified without
contradiction that he intended to run campaign ads critical of
his opponents in the future. See id. at 470sa. And he further
testified that he had run such ads in his most recent campaign.
See 2 PCS/McC 8 (McConnell). At a minimum, that is more
than sufficient to meet this Court’s relaxed requirements for
standing in First Amendment challenges. See, e.g., Members of
City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S.
789, 796 (1984); Gooding v. Wilson, 405 U.S. 518, 520
(1972).24
On the merits, section 305 is a viewpoint-based regulation,
subject to “most exacting” First Amendment scrutiny. See, e.g.,
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819,
829 (1995); R.A.V. v. City of St. Paul, 505 U.S. 377, 391
23
Under section 305, television ads referring to opponents qualify for the
lowest unit charge only if they include an image of the candidate for four
seconds and a printed statement identifying the candidate, indicating that the
candidate approved the ad, and stating that the candidate’s authorized
committee paid for the ad. Radio ads referring to opponents qualify for the
lowest unit charge only if they include a “personal audio statement by the
candidate that identifies the candidate, the office the candidate is seeking,
and indicates that the candidate has approved the broadcast.”
24
The district court contended that relaxed First Amendment standing rules
“are applicable only to claims of First Amendment overbreadth.” Supp.
App. 471sa (Henderson). But relaxed standing rules have often been applied
in cases involving claims other than traditional overbreadth. See, e.g.,
Eisenstadt v. Baird, 405 U.S. 438, 445 n.5 (1972) (equal protection);
Freedman v. Maryland, 380 U.S. 51, 56-57 (1965) (prior restraint). In any
event, while a majority of the cases imposing relaxed standing requirements
may involve claims of overbreadth, the basic rationale in all of these cases
— that “the threat of enforcement * * * may deter or chill constitutionally
protected speech,” Virginia v. Hicks, 123 S. Ct. 2191, 2196 (2003) (internal
quotation omitted) — is plainly applicable here.
68
(1992). Section 305 should be stricken because it imposes an
unconstitutional condition (namely, the requirement that a
candidate either engage in advertising that does not reference an
opponent, or include governmentally required speech) on the
receipt of a governmental benefit (the lowest unit charge). See,
e.g., Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 547-48
(2001); Board of County Comm’rs v. Umbehr, 518 U.S. 668,
674-75 (1996); Perry v. Sindermann, 408 U.S. 593, 597 (1972).
In addition, the defendants have failed to articulate any
legitimate governmental interest to justify stricter regulation of
ads that “attack” (or even mention) one’s opponent.25 Although
the federal defendants have proffered several governmental
interests purportedly served by section 305 — including that it
“provides voters with important additional information to
consider in evaluating” a candidate, Fed. Defts. D. Ct. Opening
Br. 218; that it generally serves the purpose of preventing fraud
and corruption, see id. at 216-17; and that it requires candidates
to “own up to” their sponsorship of ads, Fed. Defts. D. Ct.
Reply Br. 89 — at no time have defendants been able to link
these purported objectives to the actual requirements of the
statute. Because section 305 punishes “vehement, caustic, and
sometimes unpleasantly sharp attacks on * * * public officials,”
New York Times Co. v. Sullivan, 376 U.S. at 270, without
serving any legitimate government interest, it should be struck
down.
D.
The “Forced Choice” Provision Is Unconstitutional.
The district court unanimously, and correctly, struck down
BCRA’s “forced choice” provision. That provision, section
213, forces a political party to choose, once a candidate is
25
Even if the prevention of so-called “attack ads” were a permissible
governmental objective, section 305 is unconstitutionally overbroad, because
it would apply even to an ad that did no more than identify the opposing
candidate. Defendants have not articulated, and cannot articulate, a
governmental interest in regulating such ads.
69
nominated, whether to make independent expenditures on
behalf of the candidate, or to make coordinated expenditures,
subject to the statutory limits on coordinated expenditures
applicable to political parties. For purposes of this provision,
“all political committees established and maintained by a
national political party * * * and all political committees
established and maintained by a State political party” are treated
as a single committee. Under section 213, therefore, if one
committee of a political party chooses to make coordinated
expenditures (subject to the relevant statutory limits) on behalf
of a nominated candidate, all other committees of that party are
barred from making independent expenditures, and vice versa.
As the district court noted, section 213 “flies in the face” of
this Court’s holding in Colorado I, and is therefore
unconstitutional. Supp. App. 1170sa (Leon). In Colorado I, of
course, the Court held that political party committees, like other
entities, have an unfettered First Amendment right to engage in
independent expenditures. See 518 U.S. at 614-19 (plurality
opinion). Notably, in Colorado I, the party committee at issue
not only was making independent expenditures, but had already
effectively made the maximum permissible amount of
coordinated expenditures as well. See id. at 612. The net effect
of section 213 is to condition political parties’ receipt of a
“benefit” — specifically, the right to make a certain amount of
coordinated expenditures, which is not constitutionally required, see Colorado II, 533 U.S. at 441-4526 — on their
agreeing to forgo their constitutional right to make independent
expenditures. Such a rule severely burdens the political parties’
constitutional rights, and indeed imposes an unconstitutional
condition on them. See, e.g., Perry, 408 U.S. at 597.
These constitutional problems are only exacerbated by the
fact that section 213 treats all of the committees of a political
26
The provisions of FECA regarding the public financing of presidential
campaigns, by contrast, place conditions on the receipt of public funds.
70
party as a single committee. Section 213 therefore compels
party committees to work together to decide whether to make
independent or coordinated expenditures — and potentially
leaves a party committee at the mercy of another committee
over which it has no control (if, for instance, one county
committee decides to make coordinated expenditures without
consulting with another county committee). As Judge
Henderson noted, this compelled association “is especially
perverse in light of the fact that [BCRA] elsewhere severely
restricts [party committees] from working together to raise
certain kinds of funds and to decide how such funds should be
used.” Supp. App. 397sa; see generally supra Part I.A.1.c
(discussing Title I provisions barring joint fundraising). Section
213’s forced association, no less than Title I’s forced
disassociation, violates the First Amendment. See, e.g.,
California Democratic Party, 530 U.S. at 574-75.
Defendants have argued that section 213 is necessary because
it is “tenuous” to claim that expenditures are truly independent
when an entity is also making coordinated expenditures. See,
e.g., Intervenor Defts. J.S. 28. To the extent that is true, section
213 is woefully underbroad, since it continues to allow political
parties to make simultaneous independent and coordinated
expenditures (albeit subject to the lower limits applicable to
individuals and PACs), and allows individuals and PACs to do
so as well. Moreover, defendants’ argument boils down to an
argument that, where a political party makes some coordinated
expenditures on behalf of a candidate, all other expenditures by
that party should be presumed to be coordinated. This is little
more than a variation on the contention that all expenditures
should be presumed to be coordinated — a contention made by
the FEC, and rejected by the Court, in Colorado I. See 518
U.S. at 619-23 (plurality opinion).
Like other provisions of BCRA, section 213 reflects
Congress’ disregard, even contempt, for this Court’s campaign
finance jurisprudence. It should be invalidated.
71
E.
The “Minors” Provision Is Unconstitutional.
The district court also unanimously struck down section 318.
That provision bans anyone under age 18 from contributing, in
any amount, to a federal candidate, or giving federally regulated
or state-regulated funds, in any amount, to a national, state, or
local political party committee.
Section 318 is so plainly unconstitutional, it is difficult to
know where to start. It is indisputable that minors, like adults,
have First Amendment rights. See, e.g., Tinker v. Des Moines
Indep. Community Sch. Dist., 393 U.S. 503, 511 (1969).
Although this Court has recognized that the government has
broader authority to regulate minors than adults, it has done so
primarily when the government is acting in loco parentis to
safeguard children from harm. See, e.g., Bethel Sch. Dist. No.
403 v. Fraser, 478 U.S. 675, 682-83 (1986); Bellotti v. Baird,
443 U.S. 622, 634 (1979); Ginsberg v. New York, 390 U.S. 629,
637-38 (1968). Here, there can be no argument that section 318
is necessary to protect children: there is no evidence, for
instance, that candidates or parties are somehow manipulating
children into giving them money. For purposes of section 318,
therefore, minors are fully protected by the First Amendment.
Because section 318 does not merely limit contributions by
minors, but instead bans them altogether, it is subject to strict
scrutiny. See Buckley, 424 U.S. at 21. Section 318 cannot
survive that scrutiny, or indeed even the lower scrutiny
applicable to limits on contributions. The only governmental
interest on which defendants now rely is the supposedly
compelling interest in preventing circumvention of contribution
limits by parents who supposedly channel contributions through
their children. See Fed. Defts. Opp. to Mot. of Echols Pltfs. to
Aff. 4. As the district court noted, however, such channeling is
already barred under preexisting law, see 2 U.S.C. § 441f, and
defendants’ evidence that channeling is nevertheless taking
place is “remarkably thin.” Supp. App. 463sa (Henderson);
accord id. at 1011sa (Kollar-Kotelly). Moreover, to the extent
72
that channeling is actually occurring, it could be regulated by a
host of more narrowly tailored means, including (1) banning
contributions by minors only when their parents have “maxed
out” on their own contribution limits; (2) banning contributions
by minors only when the contributed funds were given to the
minors by others, not earned by the minors themselves; (3)
requiring disclosure of the age of donors, so as to facilitate
enforcement of the preexisting anti-channeling law; (4)
imposing a cap on contributions by minors, or on contributions
by a single family; (5) employing a rebuttable presumption
regarding the voluntariness of contributions by minors, as the
FEC itself proposed; and (6) barring contributions only by those
children too young to be capable of making knowing and
voluntary contributions. Presented with this tray full of
scalpels, Congress opted for a machete instead.27
Section 318 also violates constitutional principles of equal
protection, to the extent that it regulates speech by minors but
not identical speech by other entities, and federalism, to the
extent that it regulates even donations of state-regulated funds.
Above all, however, the complete ban on contributions by
minors in section 318 “reflects a profound congressional
disregard for the First Amendment and settled jurisprudence
thereunder.” Supp. App. 467sa (Henderson). The district
court’s decision to strike down section 318 should be affirmed.
27
Defendants argue that the right of minors to make contributions should be
limited because minors lack the right to vote, see Fed. Defts. Opp. to Mot. of
Echols Pltfs. to Aff. 2-3; the right to serve on juries or bring lawsuits, see id.
at 3 n.1; and the right to enter into binding contracts or alienate property, see
id. at 3-4. The First Amendment, however, is not somehow coextensive with
the Twenty-Sixth Amendment, and does not contain a hitherto-undiscovered
limitation to individuals with otherwise plenary legal capacity. Moreover,
while it is true that Congress has prohibited contributions by foreign
nationals (who, like minors, lack the right to vote), see id. at 9 n.4, that
restriction, unlike the restriction on contributions by minors, is justified by
the ordinary governmental interest in preventing actual or apparent
corruption.
73
F.
The “Broadcaster Records” Provision Is Unconstitutional.
The district court unanimously determined that section 504
of BCRA is unconstitutional. That provision compels
broadcasters to collect and publicly disclose detailed records
related to (1) requests by candidates to broadcast any ads and
(2) requests by private citizens and groups to broadcast ads
related to “any political matter of national importance,”
including but not limited to communications relating to any
“election to Federal office” or any “national legislative issue of
public importance.”28 As the district court unanimously found,
section 504 serves no legitimate governmental interest and thus
violates the First Amendment. In the alternative, as the district
court suggested, section 504 is unconstitutionally vague.
As a preliminary matter, Judge Henderson recognized that
section 504 is unconstitutional on its face because, like sections
201 and 311, it requires disclosure of expenditures for speech
that does not constitute express advocacy. See Supp. App.
377sa-378sa. Indeed, defendants have freely conceded that, in
terms of covered subject matter, section 504 sweeps even more
broadly than the “electioneering communications” disclosure
provisions in section 201. See Fed. Defts. Opp. to Mot. of NAB
to Aff. 7 n.1.
Even if this Court were to conclude that the government
could require disclosures related to speech other than express
advocacy, section 504 would still not survive exacting scrutiny.
Defendants have identified an ever-changing list of purported
governmental interests served by section 504, including that it
provides “public access to important information about political
28
These records must include the acceptance or rejection of requests for
advertisements; the name of the person making the requests and other
contact information; a list of the chief executive officers or members of the
executive committee or board of directors of the entity making the request;
the date and time on which the communication is aired; the rate charged; the
class of time purchased; and the issue to which the communication “refers.”
74
broadcasts,” Fed. Defts. D. Ct. Opening Br. 218; that it assists
voters who have “difficulty identifying the true sponsors of
issue ads,” id.; and that it enables “the public to evaluate
whether broadcasters are processing requests in an evenhanded
fashion,” Fed. Defts. J.S. 29. Yet defendants have never
explained how such generalized interests satisfy the exacting
scrutiny warranted by the First Amendment.
The district court found that defendants “provided no
evidence that section 504 serves any of the government
interests” that were deemed sufficient in Buckley to justify
compelled disclosure of communications about federal
candidates. Supp. App. 1182sa (Leon) (emphasis added);
accord id. at 379sa (Henderson), 1011sa (Kollar-Kotelly).
Moreover, the district court concluded that section 504’s
disclosure requirements for “noncandidate-focused” ads “are
even more difficult to justify” and that “the defendants * * *
provided no evidence” that interest groups posed a threat to
justify the comprehensive disclosures mandated by section 504.
Id. at 1183sa (Leon) (emphasis added); accord id. at 1011sa
(Kollar-Kotelly).
Section 504 imposes a wealth of burdensome and invasive
requirements upon broadcasters and political speakers alike.
See id. at 1011sa (Kollar-Kotelly), 1184sa (Leon). In this
regard, the provision is particularly intolerable under the First
Amendment because it forces disclosure to the government of
the identity and the message (even if it is never broadcast) of
private individuals and groups engaged in advocacy about
important, often controversial, social and political issues. See
NAACP v. Alabama, 357 U.S. 449, 462 (1958) (“It is hardly a
novel perception that compelled disclosure of affiliation with
groups engaged in advocacy may constitute * * * a restraint on
freedom of association * * *.”).
Finally, all three members of the district court correctly
suggested that section 504 is void for vagueness because its
application turns on the wholly ambiguous phrases “political
75
matter of national importance” and “national legislative issue of
public importance.” Supp. App. 256sa (Henderson), 1011sa
(Kollar-Kotelly), 1183sa n.141 (Leon). The inability of
broadcasters to determine when the disclosure requirements of
section 504 will apply is particularly troublesome because a
violation of the provision will subject broadcasters to
substantial fines or burdensome inquiries from the FCC. Such
vagueness is plainly intolerable under both the First
Amendment and the Due Process Clause of the Fifth
Amendment. See, e.g., Keyishian v. Board of Regents of Univ.
of State of N.Y., 385 U.S. 589, 604 (1967); Connally, 269 U.S.
at 391.
Section 504 represents a broad and aimless infringement of
the rights of broadcasters and political speakers alike. The
district court’s decision to strike down section 504 should be
affirmed.
CONCLUSION
For the foregoing reasons, the decision of the district court
should be affirmed in part and reversed in part, and the
challenged provisions of BCRA declared unconstitutional.
Respectfully submitted,
FLOYD ABRAMS
SUSAN BUCKLEY
BRIAN MARKLEY
CAHILL GORDON &
REINDEL LLP
80 Pine Street
New York, NY 10005
(212) 701-3000
KENNETH W. STARR
Counsel of Record
EDWARD W. WARREN
KANNON K. SHANMUGAM
KIRKLAND & ELLIS LLP
655 Fifteenth Street, N.W.
Washington, DC 20005
(202) 879-5000
Attorneys for Senator Mitch
McConnell and National
Association of Broadcasters
Attorneys for Senator Mitch
McConnell; Southeastern
Legal Foundation, Inc.;
Representative Bob Barr;
Center for Individual
Freedom; National Right to
Work Committee; 60 Plus
Association, Inc.; and U.S.
d/b/a Pro English
KATHLEEN M. SULLIVAN
559 Nathan Abbott Way
Stanford, CA 94305
(650) 725-9875
Attorney for Senator Mitch
McConnell
JAN WITOLD BARAN
THOMAS W. KIRBY
LEE E. GOODMAN
WILEY, REIN &
FIELDING LLP
1776 K Street, N.W.
Washington, DC 20006
(202) 719-7000
Attorneys for Senator Mitch
McConnell
VALLE SIMMS DUTCHER
L. LYNN HOGUE
SOUTHEASTERN LEGAL
FOUNDATION, INC.
3340 Peachtree Road, N.E.
Suite 3515
Atlanta, GA 30326
(404) 365-8500
Attorneys for Southeastern
Legal Foundation, Inc.;
Representative Bob Barr;
Center for Individual
Freedom; National Right to
Work Committee; 60 Plus
Association, Inc.; and U.S.
d/b/a Pro English
July 8, 2003
G. HUNTER BATES
FROST BROWN TODD LLC
400 West Market Street
32nd Floor
Louisville, KY 40202
(502) 589-5400
Attorney for Senator Mitch
McConnell and Thomas E.
McInerney